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COPYRIGHT ISSUES IN EDUCATION AND 

FOR THE VISUALLY IMPAIRED 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

COURTS, INTELLECTUAL PROPERTY, 

AND THE INTERNET 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

NOVEMBER 19, 2014 

Serial No. 113–119 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

[Vacant] 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

HOWARD COBLE, North Carolina, Chairman 

TOM MARINO, Pennsylvania, Vice-Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

TED POE, Texas 

JASON CHAFFETZ, Utah 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

[Vacant] 

JERROLD NADLER, New York 

JOHN CONYERS, JR., Michigan 

JUDY CHU, California 

TED DEUTCH, Florida 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

JOE KEELEY, Chief Counsel 

HEATHER SAWYER, Minority Counsel 
(III) 

C O N T E N T S 

NOVEMBER 19, 2014 

Page 

OPENING STATEMENTS 

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Chairman, Subcommittee on Courts, Intellectual 

Property, and the Internet .................................................................................. 1 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Ranking Member, Subcommittee on Courts, Intellectual 

Property, and the Internet .................................................................................. 2 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Committee on the Judiciary ................................. 3 

WITNESSES 

Jack Bernard, Associate General Counsel, University of Michigan 

Oral Testimony ..................................................................................................... 5 

Prepared Statement ............................................................................................. 7 

Allan Robert Adler, General Counsel, Association of American Publishers 

Oral Testimony ..................................................................................................... 13 

Prepared Statement ............................................................................................. 15 

Scott C. LaBarre, State President, Colorado National Federation for the Blind 

Oral Testimony ..................................................................................................... 39 

Prepared Statement ............................................................................................. 40 

Roy S. Kaufman, Managing Director, New Ventures, Copyright Clearance 

Center 

Oral Testimony ..................................................................................................... 44 

Prepared Statement ............................................................................................. 46 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 55 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable J. Randy Forbes, a Representative 

in Congress from the State of Virginia and Member, Committee on the 

Judiciary ............................................................................................................... 71 

Letter from Allan Robert Adler, General Counsel, Association of American 

Publishers ............................................................................................................. 72 

Letter from Blake E. Reid ....................................................................................... 78 

Letter from Denise Marshall, Executive Director, The Council of Parent Attorneys and Advocates, Inc. (COPAA) ..................................................................... 82 

Prepared Statement of Sandra Aistars, Chief Executive Officer, Copyright 

Alliance ................................................................................................................. 84 

Prepared Statement of the Library Copyright Alliance (LCA) ............................ 92 
Page

IV 

Prepared Statement of Cory Sandone, President, the Association of Medical 

Illustrators (AMI) ................................................................................................. 115 

Prepared Statement of Andrew Shore, Executive Director, the Owners’ Rights 

Initiative ............................................................................................................... 122 

Response to Questions for the Record from Roy S. Kaufman, Managing Director, New Ventures, Copyright Clearance Center ............................................... 124 
(1) 

COPYRIGHT ISSUES IN EDUCATION AND 

FOR THE VISUALLY IMPAIRED 

WEDNESDAY, NOVEMBER 19, 2014 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to call, at 3:30 p.m., in room 

2141, Rayburn Office Building, the Honorable Howard Coble, 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Coble, Goodlatte, Marino, Chabot, 

Farenthold, Nadler, Conyers, Jeffries, and Jackson Lee. 

Staff Present: (Majority) Joe Keeley, Subcommittee Chief Counsel; Olivia Lee, Clerk; (Minority) Jason Everett, Counsel; and 

Norberto Salinas, Counsel. 

Mr. COBLE. Good afternoon, ladies and gentlemen. Thank you 

again for being here today. 

I am an avid fan of schools and universities in our Nation, with 

a particular fondness, of course, to North Carolina schools. I have 

long taken pride as the co-chair of the Creative Rights Caucus that 

so many of the educational materials used around the world are 

created and published in America. 

Like all copyright owners, publishers are adapting to the digital 

age with new forms of access to new types of works. Most of us in 

the room today carried our books to school, perhaps injuring backs 

in the process, with one particular teacher who assigned what 

seemed to be the heaviest books she could find. 

Today, however, students’ backs carry a much lighter load with 

iPads and laptops replacing printed books. This switch to e-books 

saved some backs and some books as well, since students do not 

need to buy textbooks if they don’t want or need them. 

E-books are at the heart of an important and recent copyright 

case at Georgia State University, and I am sure we will hear about 

this later this afternoon. 

I am a Tar Heel fan more than a Panther fan, but I will overlook 

that for the moment, for purposes of convenience. 

Finally, our Nation has long supported our visually impaired by 

creating laws to enable the conversion of copyrighted works and devoting Federal funding to projects such as the National Library 

Services at the Library of Congress. Two of our witnesses today, in 
2 

fact, have personal experience with visual impairments. I welcome 

their thoughts as well, as we will continue reviewing our Nation’s 

copyright laws. 

Again, welcome to all of you for being here. We are looking forward to the hearing. 

And now I am pleased to recognize the distinguished gentleman 

from New York, the Ranking Member of the Subcommittee, Mr. 

Jerry Nadler. 

Mr. NADLER. Thank you, Mr. Chairman, for holding this hearing 

on copyright issues related to education and accessibility. 

As you know, the Copyright Act provides exceptions and limitations for education and for the benefit of blind and visually impaired people. Publishers produce a wide variety of educational materials for teachers and students, many of whom now access material through interactive online classes and multimedia formats. 

One of the fastest trends in educational uses in technology is online learning. However, distance learning raises all sorts of questions about copyright protection. I would like to hear from the witnesses about whether or not they think the current eligibility requirements for the distance education copyright exception are effective. 

As it stands now, the distance education exception is only available to accredited nonprofit institutions and only allows the performance of portions of these types of works without a license. The 

online learning environment is different from face-to-face learning, 

and publishers and authors believe these restrictions are important, as there is a greater risk of piracy in an online learning environment. 

As we examine the online education marketplace, we need to 

take a look at the Technology, Education, and Copyright Harmonization Act, the TEACH Act. I wonder where they got that acronym. 

The TEACH Act is located in Section 110(2) of the Copyright Act. 

It was enacted 12 years ago to deal with the increase in online education. 

I understand that many educators now say that the TEACH Act 

is extremely complex. I would like to hear from our witnesses about 

ways to make the TEACH Act more workable and, presumably, 

more simple. 

The Copyright Act supports uses that will benefit the general 

public while balancing the rights of authors. The fair use doctrine 

applies to the creation of accessible format copies of copyrighted 

works and may also apply to educational uses. 

I would like the witnesses to discuss fair use in educational activities as it relates to recent judicial decisions. 

It is often difficult to predict how a court will rule when it comes 

to educational use, because fair use is fact-specific. It is also often 

difficult to provide reliable guidance to teachers and educators, and 

this has been a major criticism of fair use law. Teachers and educators want reliable guidance about what they are permitted to do 

in the learning environment. 

We want to teach our students how to be doctors, scientists, 

innovators, and we want to discourage copyright infringement, so 

we have to get this right and find a proper balance between pro-
3 

tecting copyright holders’ rights and still ensuring fair use by students and teachers. 

We should also examine the exception for certain performances 

and displays of copyrighted works in classrooms. Section 110(1) allows educators and students to screen films on topics that a class 

is studying and provides important benefits to the education community. The use must be only in nonprofit institutions and must 

be in person in the classroom. 

In addition, the Copyright Act contains exceptions for blind and 

visually impaired persons. In particular, the Chafee amendment 

has helped provide access to copyrighted works, but the number of 

authorized entities that may create and distribute accessible works 

has been an issue of debate. 

I look forward to hearing from the witnesses about whether or 

not the Chafee amendment ought to be read to include the disability services office of a university or the accessibility service of 

a public library system, as those in the visually impaired community have argued. 

I thank Chairman Coble and Chairman Goodlatte for including 

these issues as part of the Subcommittee’s review of the Copyright 

Act. I look forward to hearing from our witnesses, and I yield back 

the balance of my time. 

Mr. COBLE. I thank the gentleman. 

Mr. Goodlatte, the Chairman of the full Committee, would you 

like to have an opening statement, sir? 

Mr. GOODLATTE. Yes, thank you, Mr. Chairman. 

Our American education system depends upon the usage of a 

wide variety of copyrighted works, from CAD software that future 

engineers use to learn how to design and build our growing cities, 

to historical news clips used by teachers to explain important historical events. In recognition of the important role of education in 

our society, the fair use provisions of Title 17 specifically identify 

educational uses as being potentially considered fair use. 

Copyright law has long recognized that relatively small uses of 

copyrighted works for education are likely to be considered a fair 

and, therefore, free use. In contrast, the use of an entire work may 

and often does require the copyright owner to be compensated for 

his or her work. 

A large number of copyright owners have responded to the need 

to educate future scholars by offering educational pricing for full 

access to newspapers, magazines, and software. Their support of 

students is much appreciated by parents who pay the bills, as well 

as teachers who are, therefore, able to offer cutting-edge software 

in their courses. 

Title 17 also includes several specific provisions related to distance learning, the utility of at least one of which has been called 

into question by educational institutions. However, copyright owners should and do have the expectation that whenever their works 

are used for educational use, distance learning or otherwise, these 

student versions of works do not escape the educational market 

and replace routine commercial sales of their products to businesses. 

Although their means of access to copyrighted works may be different than others, the visually impaired community has the expec-
4 

tation and the right to participate in our community and the copyrighted works created within it. Our Nation’s laws have long recognized and encouraged conversion of copyrighted works into formats 

for the visually impaired. The National Library Service at the Library of Congress is but one example of this, and I welcome the 

head of NLS who is in the audience today. 

The technology used to access copyrighted works for the visually 

impaired has changed with the digital revolution. 

A witness from the American Federation for the Blind highlighted this fact at a prior hearing on Chapter 12. The digital revolution may require updates to copyright laws for all Americans. 

As the final copyright review hearing of 2014, I want to thank 

the witnesses for making their time to be here this morning. 

I want to particularly thank the Chairman of the Committee, Mr. 

Coble, who has done many, many, many years of work on intellectual property law and has guided this Committee for the last 2 

years in a comprehensive review of our copyright laws that has 

been very thoroughgoing. And we hope to move forward on many 

of the ideas developed by the Chairman and others who have 

worked on this. 

But since he will be departing the Congress, I want to particularly thank him for the contributions that he has made for a significant part of his life. And I think we should give him a round 

of applause. [Applause.] 

Thank you, Mr. Chairman. 

Mr. COBLE. Mr. Chairman, thank you for your generous words. 

I appreciate it. I will give you more time, if you like to have more 

time. [Laughter.] 

I do thank you for that. 

We have a very distinguished panel today. I will begin by swearing in our witnesses before introducing them. 

If you would please rise, I will present the oath to you. 

Do you swear that the testimony that you are about to give is 

the truth, the whole truth, and nothing but the truth, so help you 

God? 

Let the record reflect that the witnesses answered in the affirmative. 

You may be seated. 

Folks, you have heard me in the past. This is the last time I will 

be able to admonish you about our 5-minute rule. There is a panel 

before you with three colors. As long as the green is illuminated, 

you are on safe, thick ice. Once the green changes to amber, and 

then amber to red, the ice on which you are skating is thin. You 

will not be punished, however, if you don’t comply. But if you can 

stay within the 5-minute rule, we would be appreciative. 

Our first witness today is Mr. Jack Bernard, Associate General 

Counsel at the University of Michigan Law School. As the lead 

copyright writer for the university, Mr. Bernard’s contributions create access for individuals with print disabilities. Mr. Bernard received his J.D. from the University of Michigan Law School and his 

master’s in higher education from the University of Michigan. 

Mr. Bernard, it is good to have you with us. 

Our second witness is Mr. Allan Adler, General Counsel of the 

Association of American Publishers. In his position, Mr. Adler deals 
5 

with intellectual property and new technology issues in our Nation’s book and journal publishing industries. He holds his J.D. 

from George Washington University School of Law and B.A. from 

the State University of New York at Binghamton, home of the TriCities, I think. 

Right, Mr. Adler? 

Mr. ADLER. Yes, sir. 

Mr. COBLE. Good to have you with us. 

Our third witness is Mr. Scott LaBarre, Colorado State President 

of the National Federation for the Blind. In his position, Mr. 

LaBarre specializes in laws affecting individuals who are blind and 

disabled. In addition, he serves as President of the National Association of Blind Lawyers and sits as chair of the American Bar Association’s Commission on Mental and Physical Disability Law. He 

received his J.D. from the University of Minnesota and B.A. from 

St. John’s University. 

Mr. LaBarre, it is good to have you with us as well. 

Our fourth and final witness is Mr. Roy Kaufman, Managing Director of New Ventures at the Copyright Clearance Center. In his 

position, Mr. Kaufman is responsible for expanding service for disabilities at the CCC, both toward new markets and services. He 

has lectured extensively on the subjects of copyright licensing and 

law medium. Mr. Kaufman received his J.D. from Columbia School 

of Law and his bachelor’s degree from Brandeis University. 

It is good to have you with us, Mr. Kaufman. 

I apologize for my raspy throat. I am coming down with the early 

stages of a bad cold. Bear with me. 

Mr. Bernard, if you will, kick us off, and keep your eye on that 

ever-bright green to amber to red light as it illuminates. 

Again, it is good to have all of you with us. 

TESTIMONY OF JACK BERNARD, ASSOCIATE GENERAL 

COUNSEL, UNIVERSITY OF MICHIGAN 

Mr. BERNARD. Thank you, Mr. Chairman and Members of the 

Committee. Good afternoon. I am so pleased to be here. 

My name is Jack Bernard, and I am Associate General Counsel 

at the University of Michigan. I am here on behalf of higher education associations whose members teach the vast majority of college students, and on whose campuses the abundance of public research takes place. 

We think about copyright every day, in the context of the academy because our own missions are so consonant with the central 

theme of copyright, which is to promote progress in order to advance learning. The teaching, research, scholarship that we do on 

our campuses walks hand-in-hand with the fundamental objectives 

of copyright, so it is never far from our minds to be thinking about 

copyright. 

We also think regularly about the balance in copyright. That is, 

we want to maintain a robust, expressive environment consistent 

with the First Amendment, at the same time that we want to offer 

copyright holders some incentive to actually create works and to 

distribute those works for the purpose of progress. Those two 

things happen hand-in-hand, and we are mindful of those in the 
6 

academy. They are important to what we do every day, in terms 

of our teaching and scholarship and research. 

We are also well-suited to think about these issues because we 

sit in a lot of the seats that copyright makes available. Postsecondary institutions and their constituents are copyright holders. 

They are authors and creators. They are also distributors and publishers. At the same time, they are users and consumers of copyrighted works. 

As authors of works, as creators of works, every year, postsecondary institutions and their constituents create millions of copyrighted works for the purpose of advancing society. Whether we are 

just talking about drawings with pen on paper, or the latest in holography, or how we describe the new throat stent that allows infants to breathe who have weak esophaguses, we are making these 

kinds of contributions on a daily basis. 

We are also distributing massively. We are not just distributing 

in the ways people ordinarily think, like speaking to students in 

the classroom or writing books or articles. We also have television 

stations and radio stations. We have satellites, and we have Internet nodes. We are trying our best to get the message out through 

the means that are there, but we are also mindful of the rights 

that are associated with messaging, and particularly around copyright. 

Finally, we are robust consumers of copyrighted works. If you 

just look at the libraries of postsecondary institutions, they spend 

billions of dollars every year just on acquisitions. This doesn’t include all the money postsecondary institutions spend on things like 

licensing software or licensing music or film. So this is a robust 

part of the engagement that happens on college campuses, interacting with copyrighted works. 

Now postsecondary institutions feel that copyright is working 

pretty well. I mean, nothing is perfect, but it is working pretty well 

for us because it enables us to make the broad kind of research and 

scholarly uses that we typically make. We know that as technology 

moves forward, as there are new models of doing business, as there 

are new and innovative ways of putting forward ideas and also getting new information, that copyright will have to adjust. But those 

adjustments should not undermine the central pillars of copyright, 

which is a balance between the copyright holders’ rights in Section 

106, the public’s limitation on those rights in Section 107, and the 

complementary sections of the copyright in Sections 108 through 

122, which allow either more robust uses of the Copyright Act or 

of copyrighted works, or they make it easier for the public to make 

determinations. 

For instance, in Section 108 of the Copyright Act, libraries can 

use Section 108 rather than going through a fair use analysis to 

make determinations about preserving works. If you want to think 

about expanding roles, look at Section 115, where a person at a 

university might make a recording of someone else’s recording, and 

make their own recording of someone else’s work, and use the mechanical license in that context. 

Our feeling is that copyright is actually doing very well for us. 

It is critical that we maintain a flexible fair use, and that fair use 

allows us to know that we can adjust over time the uses that we 
7 

are making in order to provide these important, robust experiences 

on the college campus. 

I will just conclude by saying, when we think about accessibility, 

we can’t think of a circumstance in which the Copyright Act should 

ever prevent a university or college from making a reasonable accommodation for its students. So the central message here is that 

we think the Copyright Act is doing superb work overwhelmingly. 

While there are places to nudge, we would urge Congress not undermine the three pillars of copyright. 

Thank you. 

[The prepared statement of Mr. Bernard follows:] 

Prepared Statement of Jack Bernard, Associate General Counsel, 

University of Michigan 

STATEMENT OF HIGHER EDUCATION

Submitted on behalf of: Association of American Universities American Association of Community Colleges American Association of State Colleges and Universities 

American Council on Education Association of Public and Land-grant Universities 

National Association of Independent Colleges and Universities 

SUBMITTED NOVEMBER 17, 2014

The higher education associations listed above collectively represent a broad range 

of higher education institutions in the United States, including public and private 

colleges and universities with comprehensive graduate and professional education 

programs. Our members educate a substantial majority of American college and university students and conduct most of the nation’s basic research. 

A Carefully Considered Bargain 

In the United States, we are particularly thoughtful and deliberate when we turn 

our attention to copyright law, because it is so deeply connected to two of our most 

fundamental values: freedom of expression and promotion of progress. Copyright 

law provides a strong, effective incentive for authors, artists, musicians and others 

to produce creative works that enrich the lives of our nation’s citizens and produce 

new knowledge about and understandings of the human condition and the world in 

which we live. Because the exercise of copyright rights also has the potential to curtail expression and innovation, however, we have crafted the provisions of our copyright law to strike the appropriate balance between the rights granted to copyright 

holders and the rights reserved for the public. 

A Common Cause 

Universities share a common mission with copyright—namely, to serve society by 

promoting the ‘‘Progress of Science and useful Arts’’ by encouraging and supporting 

the creation and dissemination of knowledge and creative works for the public’s benefit. At the same time, universities have a distinctively robust relationship with 

copyright law. Universities and their constituents—faculty, students, and staff—are 

creators, distributers, and consumers of copyrighted material, a dynamic that has 

only become more complex in the digital era. 

Our member colleges and universities, the federal government, industry, and philanthropic organizations spend billions of dollars annually to conduct research and 

scholarship for the benefit of society. Frequently, the copyrighted works that result 

from this research are made freely available to the public or are submitted to publishers, which conduct critical peer review and work with authors of accepted manuscripts to prepare articles for commercial distribution. Unsurprisingly, postsecondary institutions are among the nation’s leading copyright consumers, as well. We 

reliably purchase and license billions of dollars of copyrighted works each year and 

our students, too, annually purchase billions of dollars of copyrighted works. 

To provide a few additional examples of the intricate relationship that institutions 

of higher education have with copyright: 

• University faculty—who are authors themselves—present and discuss copyrighted works in both analog and, increasingly, digital formats. For example, 

as a norm, faculty now teach using PowerPoint presentations and comparable 

applications and assign materials that are best accessible through digital 

means. In addition to using such presentations, faculty regularly exploit the 
8 

1To be clear, as the higher education associations noted in their amicus brief in Cambridge 

University Press v. Patton, at 30, No. 12–14676 (11th Cir., Oct. 17, 2014), available at http:// 

www.acenet.edu/news-room/Documents/GSU-AmicusBrief.pdf, academic works are typically created with the author’s expectation that they will be widely disseminated and discussed for the 

purpose of scholarship. Academic authors do not look to the economic incentives of copyright 

protection to induce them to create. Even for such works, however, copyright remains an important means of protecting the integrity of academic works and ensuring appropriate attribution. 

vast capacities of the Internet, often accessing research collections held by 

museums, libraries, and academic and research institutions worldwide in real 

time. In today’s world, course management systems are at least as much a 

part of the collegiate classroom as the chalkboard. 

• ‘‘Flipped classroom’’ experiences, which are a form of blended learning, are becoming increasingly common at American universities. In the flipped classroom, the professor or instructor presents her lectures, slides, notes, and 

other handouts asynchronously through a course management system before 

the students come to class. The instructor then can spend precious class time 

in a much more engaged interaction with students rather than lecturing to 

them. Classroom activity may be recorded, providing students with opportunities to revisit material covered in live classroom sessions and supplement the 

more interactive, discussion-based live classroom experience. These experiences also offer alternatives to students who, due to illness or other causes 

beyond their control, cannot attend the live classroom sessions. 

• Faculty collaborate within and across institutions of higher education, domestically and internationally, on innovative projects that are difficult to situate 

within the traditional contours of intellectual property. For example, full-text 

searching and deep and broad data mining have opened up unprecedented opportunities for innovative scholarship in many different fields, including the 

biological and physical sciences, the humanities, social sciences, law, etc. Researchers from scores of postsecondary institutions across the world are working collaboratively and in parallel to explore the complexities of the human 

genome. Because access to the night sky and from certain vantage points are 

geographically bound, much astronomical research happens through networks 

of scholars. Similar synergistic efforts take place across disciplines such as 

medicine, volcanology, public health and infectious disease, environmental 

studies, journalism, public policy, physics, and archaeology, to name but a 

few. 

• Students commonly need to access copyrighted content, including audio-visual 

content, as a central component of their educational experiences. Students 

also yearn to innovate; for example, imagine the student who wishes for her 

senior project to explain the role of children in 20th century literature by creating an audiovisual presentation, which might include music, performance, 

and images to illustrate themes and provide critical examples. The doctoral 

dissertations of today are increasingly dynamic, interactive tools for imparting knowledge. 

• Universities also support a range of internal and affiliated enterprises that 

both generate and depend upon use of copyrighted works, including research 

libraries, archives, museums, and academic presses. Universities operate television and radio stations, satellites, cable networks, Internet nodes, and a 

host of other communication hubs that transmit and receive copyrighted communications. They have music studios, film and video production teams, animation labs, virtual reality labs, 3D printers, and art studios that foster every 

imaginable expressive medium. 

Copyright supports the fundamental mission of colleges and universities to create 

and disseminate new knowledge and understanding through teaching, research, and 

scholarship. Copyright does this not only by providing incentives for the creation of 

new works through the grant of proprietary rights to copyright holders, but also— 

equally critically—by carefully limiting those rights in order to facilitate public access to, and use of, creative works.1

Maintain the Basic Structure of Rights in the Copyright Act 

First, as an overarching matter, because many sectors of society, including the 

academy, rely on how the Copyright Act structures the balance of rights, the higher 

education associations believe that any endeavor to update, amend, or even tweak 

the Copyright Act should not disrupt the basic structure of rights. This structure 

has three connected pillars: a) the rights of copyright holders, b) fair use, and c) 
9 

2These rights include the right to reproduce (i.e., make copies) of a work; create derivative 

works based on the work; distribute copies of the work; publicly display the work; perform the 

work; and, for sound recordings, to perform the work publicly by means of a digital audio transmission. 3 As will be discussed below, other limitations on a copyright holder’s rights that authorize 

educational uses in the copyright law—such as Section 110(2) (codified as the TEACH Act)— 

are so narrow and unwieldy that they must be used in conjunction with fair use in order to 

be of any real practical value to educators and scholars. 4 ‘‘The copyright law, like the patent statutes, makes reward to the owner a secondary consideration.’’ United States v. Paramount Pictures, Inc., 334 U.S. 131 (1948); see also Sony Corp. 

of Am. v. University City Studios, Inc., 464 U.S. 417, 429 (1984) (‘‘The monopoly privileges that 

Congress may authorize are neither unlimited nor primarily designed to provide a special benefit. Rather, the limited grant is a means by which an important public purpose may be 

achieved.’’). 5 Cambridge University Press v. Patton, at 18, No. 12–14676 (11th Cir., Oct. 17, 2014). 

other limitations supporting additional public uses. This framework has been extraordinarily successful. Changes to the relationship among these grounding elements would destabilize the higher education ecosystem. 

The first pillar, the rights of copyright holders, is currently spelled out in §§ 106 

and 106A.2 These valuable rights are subject to and limited by the rights and uses 

authorized for the public in §§ 107–122. This structure balances the constitutional 

speech and progress objectives of the public with the copyright holders’ opportunities to make and to authorize important uses of their copyrighted works. 

The public’s fair use rights (§ 107), the second pillar of copyright’s structure, stand 

out among the other limitations on a copyright holder’s rights, because the flexibility built into fair use enables copyright to achieve its constitutional objectives. 

Courts can ensure that the public has sufficient uses so as not to transgress the 

First Amendment and, at the same time, enable copyright holders to receive their 

benefits in this bargain. Fair use allows the uncertainties that emerge from new 

uses, new technologies, or new business models to be addressed in a manner that 

achieves copyright’s constitutional purpose. 

The additional rights and uses (§§ 108–122) of the third pillar have a complementary relationship with fair use. Those that expand upon fair use (e.g., the compulsory license rights in § 115) enable the public to make important uses that would 

likely fall outside fair use. Others (e.g., reproduction rights for libraries and archives 

in § 108) enable the public to apply simpler metrics (than the sometimes unpredictable four-factor test of fair use) to make appropriate uses of copyrighted works. 

Through this pillar, Congress has been able to foster uses most beneficial to the 

public without hindering the flexibility necessary for fair use. 

Although a changing world may indeed warrant new provisions or adjustments 

to the Act, these modifications should not disrupt the time-tested structure that 

carefully balances the copyright holder’s rights with limitations that authorize 

rights and uses for the public. 

Fair Use 

The fair use provisions of § 107 permit the use of copyrighted works without permission or payment under certain circumstances. Fair use is a necessary means of 

1) ensuring that copyright law does not obstruct the very learning that it should 

promote; 2) promoting the public interest; and 3) securing First Amendment rights. 

In fact, the very mission of American higher education—to expand and disseminate 

knowledge and understanding through education, research, and scholarship, and to 

foster public service—depends on the fair use right, notwithstanding the uncertainty 

that sometimes accompanies reliance on it.3 Accordingly, the higher education associations listed above strongly support the continued viability of flexible fair use as 

a bedrock principle of U.S. copyright law. 

As described above, the power to enact copyright law was included in the Constitution to enrich society by stimulating creative expression and thereby advancing 

public knowledge. The Supreme Court has consistently emphasized that the primary 

goal of copyright is to serve the public interest, not the author’s private interest.4

The Eleventh Circuit recently reaffirmed this fundamental principle in its decision 

in Cambridge University Press et al. v. Patton (otherwise known as ‘‘the Georgia 

State’’ case): ‘‘The fair use doctrine also critically limits the scope of the monopoly 

granted to authors under the Copyright Act in order to promote the public benefit 

copyright is intended to achieve.’’ 5 Moreover, also in the Georgia State case, the 

Eleventh Circuit expressly recognized the specific importance and relevance of fair 

use in the education context, asserting that ‘‘Congress devoted extensive effort to 

ensure that fair use would allow for educational copying under the proper cir-
10 

6 Id. at 27. 7 In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—(1) the purpose and character of the use, including whether 

such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of 

the copyrighted work; (3) the amount and substantiality of the portion used in relation to the 

copyright work as a whole; and (4) the effect upon the potential market for or value of the copyrighted work. 8 In Authors Guild, Inc. v. HathiTrust, 755 F. 3d 87 (2nd Cir. 2014), the Second Circuit held 

that digitizing and enabling full-text search is a transformative use and a fair use. The court 

cited cases from many circuits to support this holding, thereby diminishing a previously perceived circuit split. 9 Authors Guild, Inc. v. HathiTrust, 755 F. 3d 87 (2nd Cir. 2014), quoting Authors Guild, Inc. 

v. HathiTrust, 902 F.Supp.2d 445, 460–64 (S.D.N.Y. 2012). 

cumstances and was sufficiently determined to achieve this goal that it amended the 

text of the statute at the eleventh hour in order to expressly state it.’’ 6

In short, Section 107 statutorily shapes the boundaries of a copyright holder’s 

rights as delineated in Section 106. It provides a pliable fair use standard that entails a case-specific analysis of whether particular uses of copyrighted works are 

outside the scope of what the copyright holder is entitled to prohibit.7 This multifactored approach ensures that public and private interests are appropriately balanced. 

Higher education institutions rely on the elasticity that fair use offers. The availability of fair use enables the effective use of copyrighted works when licenses are 

not reasonably available or when they are not required, even when available. Universities have found, for example, that several major educational publishers refuse 

to license content for library reserves, and that some copyright holders simply fail 

to respond to requests to use copyrighted works. Other rights holders are quick to 

demand royalties or licenses for sentence-long quotations that are used in scholarly 

works. If fair use applies, the university may elect to use the work, but the perceived risk of an aggressive, misguided legal challenge nevertheless may cause the 

university to forego a legitimate use. Universities and their faculty—who are, again, 

themselves authors and distributers—recognize the important copyright rights 

granted to authors, publishers, and other copyright holders. Fair use must be available, however, if the mission of higher education is to be realized. 

Colleges and universities utilize fair use to teach and research in innovative ways. 

Extensive use of online resources in education is perhaps the most salient development related to fair use since the enactment of the 1976 Act. Access to and dissemination of digital works for purposes of teaching, scholarship, and research are essential to the higher education process. Full-text searching has been called the most 

significant advance in search technology in the past five decades, for it allows scholars to perform searches in seconds that used to take days, months, or even years— 

if the search was possible at all.8 ‘‘Text mining’’ is a powerful new form of statistical 

research made possible through application of fair use to digitized works. 

Fair use, along with Section 121 (‘‘Reproduction for blind or other people with disabilities’’), also expands educational opportunities for people who have print disabilities. Digitization based on fair use is necessary to overcome disadvantages that students who have print disabilities historically have faced in research, scholarship, 

and instruction. For the first time, students and scholars who have disabilities are 

now able to access a universe of knowledge that, in its traditional form, they could 

not. Fair use also facilitates institutional compliance with federal nondiscrimination 

laws that require higher education institutions to provide reasonable accommodations to people who have disabilities. These statements find support in District 

Court Judge Baer’s statement in Authors Guild v. HathiTrust, quoted approvingly 

by the Second Circuit, that he could not ‘‘imagine a definition of fair use that would 

not encompass the transformative uses made by the [universities’ digitization 

project] and would require that I terminate this invaluable contribution to the 

progress of science and cultivation of the arts that at the same time effectuates the 

ideals espoused by the ADA.’’ 9

Finally, fair use complements the provisions of Section 108 (‘‘Reproduction by libraries and archives’’) to assure the preservation of information for future generations. Libraries and archives are only allowed to distribute digital copies made 

under this provision to a very limited extent, however, and consequently must rely 

on Section 108 and Section 107 in concert in order to enable the accessibility of the 

digital copies to the public. Section 108(b) and 108(c) specifically authorize libraries 

and archives to make digital copies of unpublished works that are not otherwise 

commercially available, but such copies may only be made available to the public 

on the premises of the library or archive in possession of such copy. Section 108(e) 

allows libraries and archives to distribute such works in digital form, but only to 
11 

patrons who specifically request such a copy; and it does not explicitly permit libraries and archives to provide access by displaying or performing the work, so it does 

not specifically allow for computer display or performance. And, although Section 

108(h) is more expansive in affording nonprofit educational institutions (which 

would include museums and other collections within such institutions) the right to 

‘‘reproduce, distribute, display or perform’’ digital copies of works, such rights only 

apply to works in their last twenty years of term of copyright. What is more, none 

of the foregoing sections apply to the reproduction or distribution of music, pictorial, 

graphic or sculptural works. 

TEACH Act 

The TEACH Act, enacted in late 2002 and located in Section 110(2) of the Act, 

was intended to broaden educators’ rights to perform and display works in the context of digital distance education. Section 110(2) is strictly limited in scope—for example, requiring that audiovisual and dramatic musical works be shown only as 

clips—particularly in comparison with the rights afforded to educators in face-toface teaching settings in Section 110(1). The disparity between face-to-face and distance learning, however, has become far less relevant in the twelve years since the 

TEACH Act became law, as online education has rapidly flourished. Indeed, many 

educators find that the TEACH Act’s complexity, combined with its array of limitations and conditions, render it essentially useless. 

Nonetheless, with the continued growth of online education, a workable TEACH 

Act would benefit students and faculty engaged in online education. The higher education associations therefore respectfully propose that Congress and the Copyright 

Office consider updates and revisions to Section 110(2) to make the TEACH Act consonant with current and anticipated pedagogical practices by enabling a fuller exploitation of ever-evolving digital technology for educational purposes. 

Orphan Works 

The higher education community appreciates Congress’s and the Copyright Office’s ongoing attention to the challenges presented by orphan works—works protected by copyright, but whose copyright holders cannot be identified or located. Orphan works present a serious problem for institutions of higher education. Typically, 

these works are unavailable for sale, new or otherwise, and there is no reliable 

way—even with a good faith, diligent effort—to secure permission to use them. This 

situation generates uncertainty and raises the specter of copyright liability for colleges and universities (particularly smaller institutions that cannot afford regular 

legal counsel). Consequently, university libraries, museums, archives, and other 

public-service entities holding orphan works are deterred from using these works— 

some of which may be very significant—for education, research, and broad public 

benefit. 

The higher education associations do not at this time endorse any present or past 

proposed regulatory or legislative mechanism to manage uses of orphan works. We 

do wish to caution, however, that any such orphan works program must effectively 

balance the interests of copyright holders whose works might be mistakenly identified as orphan works against the importance of enabling more vigorous uses of orphan works for the public. Further, any regulatory or legislative approach must 

avoid excessive regulatory burdens that make effective use of orphan works infeasible and must be sensitive to the requirements and capacities of universities and 

other non-profit institutions and permit appropriate tailoring for differing circumstances; for example, it should not specify procedures for educational and research uses that would be more appropriate for commercial entities. 

The Digital Millennium Copyright Act (DMCA) 

Section 1201 

The higher education associations remain concerned that Section 1201 is adversely affecting, and will continue to adversely affect, the ability of the educational 

community to access copyrighted works for the purpose of engaging in lawful, noninfringing uses of those works and/or using uncopyrighted materials integrated in 

those works. Congress made clear that the Section 1201 rulemaking process was 

meant to temper the restrictive effects of Section 1201 by ensuring that access controls would not be used to impede users’ rights to use the copyrighted works in lawful, noninfringing ways. 

Yet contrary to Congressional intent, the DMCA’s 1201 rulemaking provisions are 

not only unduly burdensome, but also require such unrealistically extreme evidence 

of harm that the procedure fails to provide any real relief to entities wishing to use 

such works in good faith. Furthermore, the cumulative effect of Section 1201’s prohibition against circumvention of technological protection and the limited utility of the 
12 

10See http://www.whitehouse.gov/sites/default/files/microsites/ostp/ostp_public_access_memo_ 

2013.pdf. 

rulemaking in practice nullifies the fair use of any technologically protected copyrighted works: fair use enables use without permission, but the Section 1201 anticircumvention provisions prevent access to a work whose use would otherwise be 

fair. 

We therefore respectfully urge the Copyright Office to recommend, and the Librarian to adopt, an expansion of ‘‘classes of works’’ falling within the scope of Section 

1201 exempted works, in order to more closely and expediently effectuate the purpose of Section 1201 as expressed in the statute and legislative history. One such 

class of exempt works could be lawfully-acquired ‘‘per se’’ educational works, comprising, for instance, scientific and social science databases, academic monographs 

and treatises, law reports, and educational audiovisual works; a ‘‘user and environment’’ restriction could be placed on such a list to curtail any possible abuses. Another option might be to allow for presumptions in the triennial rulemaking process; 

that is, the fact that a class was previously designated could create a presumption 

that redesignation is appropriate. 

Importance of Open Access Options 

The higher education associations wish to take this opportunity to reiterate our 

goal of creating lawful, noninfringing new opportunities for expanded public access 

to scholarly publications. We share this aim with President Barack Obama’s Administration, which articulated corresponding public access policies in the Office of 

Science and Technology Policy’s February 2013 Memorandum on Increasing Access 

to the Results of Federally Funded Scientific Research.10 Research universities have 

a mission to create and build upon new knowledge, broadly disseminate the results 

of their research, and preserve information for future generations. 

Although peer-reviewed scientific and scholarly publications have served researchers and scholars well by making high-quality articles broadly available, the price of 

some journals has risen far beyond reasonable costs, placing a tremendous burden 

on research libraries and individual subscribers and restricting access to new knowledge. Digital technologies have enabled new ways to disseminate and preserve the 

results of research and scholarship. These technologies, coupled with enlightened 

public access policies such as those espoused by OSTP, can both reduce the cost and 

increase the dissemination of research and scholarship. It is imperative that publishers—commercial and non-profit academic publishers alike—accommodate their 

copyright policies to enable the benefits of digital publishing to be realized fully. 

Novel approaches to rights protection, such as the Creative Commons licenses that 

allow authors themselves to determine which protections, if any, they want to apply 

to their works, creatively advance the fundamental goals of copyright. The higher 

education associations caution that any updates or revisions to the copyright law 

should not erode or allow others to impinge upon these alternative approaches to 

constituting and organizing intellectual property dynamics. 

The Constitutional purpose of copyright law is to promote learning and creative 

expression. The considered constellation of exclusive rights, balanced by fair use and 

carefully calibrated limitations on those rights, is integral to achieving this purpose. 

Without these checks and balances in the copyright law, educational, scholarship, 

and research opportunities would be lost, to the detriment of students, scholars, and 

researchers at America’s higher education institutions and to the detriment of our 

nation, its economy, and the quality of life of our citizens. Higher education requires 

flexibility rather than too-narrow or overly-prescriptive exemptions for research, 

scholarship, and teaching. A loss of this flexibility would impede teaching, learning, 

research, and scholarship, the very ‘‘Progress of Science’’ the founders intended 

copyright to promote. 

Mr. COBLE. Thank you, Mr. Bernard. Appreciate your testimony. 

Mr. Adler? 
13 

TESTIMONY OF ALLAN ROBERT ADLER, GENERAL COUNSEL, 

ASSOCIATION OF AMERICAN PUBLISHERS 

Mr. ADLER. Thank you, Mr. Chairman. Thank you for the opportunity, along with Mr. Nadler and other Members of the Subcommittee, to testify today on behalf of AAP. 

For publishers and students, teachers, libraries, and academic institutions of higher education, copyright and digital technologies 

are enabling a new world of online and other digital learning solutions that help colleges help students to stay in school, become 

more fully engaged in learning, and improve their outcomes and 

graduation rates. 

College students with print disabilities also benefit from accessible digital content when they have accessible systems and devices 

to make it available. 

But confusion with the scope and application of fair use, based 

on the new jurisprudence discussed in an earlier hearing, can diminish investments in the new creative content and services that 

have been copyright’s foundation for centuries. 

The hallmarks of this new jurisprudence include shortcutting the 

statutory fair use criteria with the bloated concept of 

transformativeness and subjective notions of what is in the public 

interest or offers significant public benefits. Disagreement about 

the propriety of this fair use expansion is playing out on thousands 

of campuses nationwide and featured in pending litigation by three 

academic publishers against Georgia State University. 

My written statement explains our key points, which briefly are, 

first, there is no general or per se exception for use of copyrighted 

material for educational purposes or by nonprofit educational institutions under the Copyright Act, and such uses are not presumptively fair use. 

The Supreme Court has confirmed that Congress resisted pressures from special interest groups to create presumptive categories 

of fair use, and it has held that the mere fact that a use is educational and not-for-profit does not insulate it from a finding of infringement. 

Court rulings in the pending Georgia State litigation show troubling hallmarks of this new jurisprudence for fair use analysis. 

That litigation addresses Georgia State’s fair use claim for the university’s switch from licensed paper course packs for curriculum 

reading to unlicensed digital versions of the same materials for the 

same purpose. 

The appellate court’s analysis included these problems. First, 

copyright’s principle of media neutrality means, as the concurring 

judge noted, that use of a copyright protected work that had previously required the payment of a permissions fee does not all of 

a sudden become fair use just because the same work is distributed 

via a hyperlink instead of a printing press. So if a paper course 

pack requires permission fees, the same content made available in 

a digital format also requires permission fees. But the majority 

opinion did not take this view, allowing paper and digital formats 

to be treated differently. 

Also, despite the admittedly nontransformative verbatim copying 

of the works at issue, and Georgia State’s cost savings from not 

paying permission fees in a fiercely competitive college market, the 
14 

majority opinion waived the nature and purpose of the use at issue 

in favor of fair use simply because it provides a broader public benefit furthering the education of students at a public university. 

Although Congress requires evaluation of harm to potential markets under Section 107, the majority opinion endorsed a market 

harm analysis that looks only at harm to existing markets, significantly undermining the incentives for publishers to invest in exploring entry into relevant new markets. 

Uncertainty over the Georgia State litigation outcome demonstrates a need for guidance at a national level to clarify fair use 

in education and other contexts. To our knowledge, no one, including AAP, is urging Congress to amend Section 107. But AAP urges 

Congress to direct the Copyright Office to initiate a study to help 

clarify fair use in a more participatory, transparent, and timely 

manner than is likely through legislation. 

Conclusion: Publishers will continue to invest in innovative digital content, technologies, and services if they have confidence in 

the exercise of their exclusive rights. But they won’t have that confidence if the new jurisprudence gives nonprofit educational institutions and educational purposes a privileged, cost-free status not 

found in the law. 

Without clarification, not only publishers, but the entire ecosystem of higher education will miss opportunities in new digital 

learning solutions. 

On accessibility, until recently, consumer markets for accessible 

materials were nonexistent. A copyright exemption called the 

Chafee amendment largely shaped efforts to ensure and expand the 

availability of accessible copies. But now technology is enabling ordinary consumer markets to serve the extraordinary needs of accessibility. It is important to ensure the copyright exemptions safety 

net doesn’t diminish publisher investments that are fueling such 

progress. 

Finally, AAP urges Congress and the administration to consider 

that progress as they review the efficacy of the Chafee amendment 

and the possible need to revise it for U.S. compliance with the 

WIPO Marrakesh Treaty upon Senate ratification. 

Thank you. 

[The prepared statement of Mr. Adler follows:] 
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Mr. COBLE. Thank you, Mr. Adler. 

Mr. LaBarre? 

TESTIMONY OF SCOTT C. LaBARRE, STATE PRESIDENT, 

COLORADO NATIONAL FEDERATION FOR THE BLIND 

Mr. LABARRE. Thank you, Mr. Chairman, and Members of the 

Committee. It is, indeed, an honor and pleasure to testify before 

you today. 

I am totally blind, Mr. Chairman. I have been so for over 36 

years. Consequently, your light system will not do a lot for me, so 

when I am on that thin ice, please rescue me and interrupt me 

whenever you need to. 

I come at this today from a slightly different perspective in two 

ways. Number one, I am not a copyright lawyer, although my participation as the National Federation of the Blind delegate to WIPO 

for the last several years has given me quite a schooling in copyright law. But my primary focus of practice is disability rights law, 

so that gives me one perspective. 

The other perspective is as the ultimate consumer of some of the 

very topics we are talking about here. Being blind since the age of 

10, I have had to access information in a different way, and that 

journey has been a difficult one. It has been a difficult one because 

it is fair to say that I have faced a dearth of information. 

The vast majority of published works are not available in accessible formats. Consequently, a great deal needs to be done to make 

those formats accessible. 

I cannot tell you how many times it would take weeks or months 

to get the same book that my sighted colleagues were using in a 

way that I could meaningfully use it. Quite frankly, many times 

during my education, I never got a copy of a particular book or 

work. 

Now today’s emerging technology, the revolution that we are all 

living, is something that we in the blindness community have, certainly, welcomed. But one of the main points I wish to make before 

this Committee today is that technology in and of itself is not the 

answer. And technology, as referenced by my good colleague Mr. 

Adler, is not opening up published works for the use of blind and 

low-vision Americans and other citizens of the world, because even 

though technology holds out a great deal of promise, if it is not accessible, if it is not usable by the systems that blind and low-vision 

people use, then the divide we face only grows wider. And despite 

the fact that a great deal of digital content has been in play for 

many, many years, we in the community still have very little access to that information. 

So we believe our copyright system promotes the progress of 

science and the useful arts, as the Constitution says. To that, we 

say this means the Constitution provides a right to access information. And anything we do with our copyright system should bolster 

and strengthen access to information. 

It is true that the Chafee amendment has provided some relief 

to those of us who are blind and low-vision. It has opened up more 

doors that had been previously closed. Nevertheless, we have access in the United States to only a few hundred thousand works 

in accessible formats, as compared to the millions of works that are 
40 

accessible to everybody else who happens not to be blind or lowvision. 

So the copyright system needs to change the paradigm. We need 

to think about it in a little bit different way. 

Traditionally, what we have believed is that the approach would 

be one of reasonable accommodation. This is an after-the-fact fix to 

something that is inaccessible. Reasonable accommodation being, 

for example, putting a book into Braille, hardcopy Braille, audio, or 

whatever. 

But we in this technical revolution have the opportunity to make 

every single published work accessible from the beginning. That is 

the promise that technology holds, and that is what the copyright 

system needs to support. 

Therefore, we are bringing to Congress, as you know, Congressman Coble, because you are a cosponsor, the new TEACH Act— 

Technology, Equality and Accessibility in College and Higher Education. This law calls for guidelines to be created so that colleges 

and universities offer their various instructional materials and 

other educational aspects in an accessible way. 

Mr. MARINO [presiding]. Mr. LaBarre, this is Tom Marino. I am 

the Vice Chair. Mr. Coble stepped out, so I am sitting in the Chair. 

Could you please wrap up here shortly? 

Mr. LABARRE. Certainly. 

Mr. MARINO. Thank you. 

Mr. LABARRE. We, certainly, ask this Congress to support H.R. 

3505, the TEACH Act. And we also believe that until we have a 

day when all works are born accessible, we do need exceptions and 

limitations to copyright. We strongly urge the United States Senate 

and, if it comes as an executive agreement, this House to ratify and 

adopt the Marrakesh Treaty. 

Thank you. 

[The prepared statement of Mr. LaBarre follows:] 

Prepared Statement of Scott C. LaBarre, President, National Federation of 

the Blind of Colorado; President, National Association of Blind Lawyers; 

Counsel for National Federation of the Blind; and Attorney, LaBarre Law 

Offices 

INTRODUCTION

Good afternoon Chairman Goodlatte, distinguished members of the committee and 

other witnesses. My name is Scott LaBarre, and I am here on behalf of the National 

Federation of the Blind (NFB). The NFB is the oldest and largest nationwide organization of blind people with over fifty-thousand members in fifty-two affiliates across 

the country; I am President of the National Federation of the Blind of Colorado, 

President of the National Association of Blind Lawyers, and legal counsel for the 

Federation. I am also here today as an attorney that specializes in disability rights 

law, the former Chair of the American Bar Association’s Commission on Disability 

Rights, and a blind parent. 

I appreciate the opportunity to speak about copyright issues that affect blind students in the education space. It is tremendously important for me to be here today 

because I want to make sure that nothing stands between blind students and their 

dreams. I know firsthand the barriers blind students face and even though I graduated law school in 1993, blind students today face essentially the same issues and 

it is high time that we take strong and bold action to eliminate barriers that are 

largely artificial and unnecessary. It is equally important for me to be here because 

it shows that Chairman Goodlatte and the committee are concerned about students 

with disabilities. We are grateful for your initiative in hosting this hearing and your 

willingness to collect our feedback. 
41 

I have been a leader in the organized blind movement for nearly thirty years, and 

I have never been more encouraged than I am right now. The possibilities of technology offer countless opportunities to improve access for blind students and make 

millions of texts available to blind people across the globe. But, I also have never 

been more worried than I am right now, as those possibilities are still pending. If 

they are missed, a new brand of discrimination will roll out that is more damaging 

than the print world ever was. My testimony will address policy recommendations 

for how Congress can proactively address this quandary. 

I will discuss 1) The paradigm shift from the accommodations model to a focus 

on mainstream access; 2) The HathiTrust case and potential clarifications in copyright law to promote the use of accessible digital formats; 3) Changes to copyright 

law that compliment solutions for accessible instructional material in the TEACH 

Act; and 4) the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled. 

A FOCUS ON MAINSTREAM ACCESS

Issue 

The transformation of print text into digital formats has revolutionized the way 

we access the written word, and this transformation holds particularly profound 

promise for the blind. Blind students have long been relegated to an ad-hoc, afterthe-fact accommodations model in higher education where titles, academic journals, 

and other educational resources are only made available after a time consuming and 

expensive conversion of those materials into Braille, large print or audio formats. 

This method is adequate in a print world, but the explosion of a new, digital world 

opens the door for blind students to bypass this model and have mainstream, instant access to all of the same content as their sighted peers. The opportunity to 

expand the circle of participation that stems from this explosion of information will 

only be harnessed if the conversion to digital text is promoted by lawmakers, and 

if the digitized copies are available in an accessible format. 

Fortunately, there is a framework for success in these objectives. Copyright law 

promotes converting titles into accessible formats with the Chaffee Amendment and 

fair use provisions, and federal district and circuit courts have upheld the application of these exemptions to the creation of accessible digital formats for the blind 

in the landmark HathiTrust case. A few small clarifications from Congress could reinforce this decision and reduce future disputes. Similarly, the Americans with Disabilities Act requires institutions of higher education and libraries to provide equal 

access for students and patrons with disabilities, a task made significantly easier 

when mainstream content is available in accessible digital formats. Lawmakers 

could incentivize schools to move away from the accommodations model by offering 

technical criteria for accessible instructional material, thereby reducing litigation 

and stimulating the market. The upcoming Congress is likely to consider ratification 

of a ‘‘Books Across Borders’’ treaty, offering lawmakers an opportunity to encourage 

other countries to adopt policies similar to ours and allow blind people access to millions of titles in the international book market. 

Policy Recommendation 

The framework is there, but we will not achieve success without the right perspective. Often, when lawmakers are approached about bills that promote accessibility, 

the reaction seems to be that legislation is unnecessary because the entities in question are successfully deploying the accommodations model. Braille, large print and 

other specialized formats are indeed important and should not be devalued, but this 

model must be used in concert with a significant, purposeful drive towards mainstream access. Or, lawmakers assume that if entities are opposed to mainstream access that it must be inherently harmful to those entities. In reality, mainstream access benefits everyone. Data and common sense tells us that if we can remove the 

need to provide personal, specialized treatment to an entire population of users, we 

can reduce costs and expand the circle of participation simultaneously. 

For people with disabilities that demand equality, a government that desires policies that systemically benefit everyone and a society that rejects ‘‘separate-butequal’’ practices, mainstream access must be a fundamental goal. This approach is 

the undercurrent of my testimony and should be considered when examining or implementing the policy recommendations I make today. 
42 

HATHITRUST AND CLARIFICATIONS TO COPYRIGHT LAW

Issue 

The Authors Guild has defiantly opposed efforts to make digital books accessible 

to the blind, forcing advocates to overcome this resistance through repeated complaints to federal agencies and litigation in federal courts. 

The landmark decision in The Authors Guild, Inc., et. al., v. HathiTrust, et. al. case by the United States District Court for the Southern District of New York, 902 

F. Supp.2d 445 (S.D.N.Y. 2012) and affirmed in important respects by the United 

States Court of Appeals for the Second Circuit, 755 F.3d 87 (2d Cir.2014), supports 

the view that copyright law does indeed provide the framework to promote the conversion of print materials to accessible digital texts. The HathiTrust is a repository 

of accessible digitized content administered by the University of Michigan and Indiana University, a repository that allows blind students at the thirteen participating 

universities to access the millions of volumes of texts included in the repository. The 

Chafee Amendment allows for copies of texts to be made by an authorized entity 

that has a ‘‘primary mission to provide specialized services relating to adaptive 

reading or information access needs.’’ In the HathiTrust case, United States District 

Court Judge Baer found that the digitization of the millions of texts by the university libraries was not a violation of copyright law because ‘‘The ADA requires that 

libraries of educational institutions have a primary mission to reproduce and distribute their collections to print-disabled individuals, making each library a potential ‘authorized entity’ under the Chafee Amendment.’’ 

The Second Circuit Court upheld this decision, and found that the copying done 

in the HathiTrust was also acceptable under the fair use provision. Fair use considers factors like whether the market is meeting necessary services on its own, the 

purpose and character of the use, including whether the use is for non-profit educational purposes, the nature of the copyrighted work, the effect of the use upon the 

potential market for or value of the copyrighted work, among other facts. What is 

unique about the application of fair use doctrine in the HathiTrust case is that, 

while the accessible formats are explicitly only available to blind and low vision students, the digitization as a whole was done in a mainstream fashion. The process 

was done to benefit all students, but with consideration for how to expand that benefit beyond the mainstream users so the blind students have the same level of access. The appellate court’s ruling should encourage future universities to digitize 

works in a way that ultimately perpetuates a mainstream model of access. 

Policy Recommendation 

Regardless of whether the HathiTrust is characterized as an example of Chafee 

exemption or the fair use doctrine, it is a solid illustration of the framework provided by copyright law to promote and encourage the production of accessible digital 

books, particularly in a mainstream fashion. It is also a solid illustration of the direction Congress should take if it wants to reinforce this encouragement. Given the 

Author’s Guilds’ persistent opposition to making digital books accessible to the 

blind, some clarifications could reduce the amount of future disputes being similarly 

worked out by the courts. These clarifications could include an explicit statement 

that all educational institutions and libraries are ‘‘authorized entities’’ under 

Chaffee, or an added consideration for digitized works under fair use and Chafee. 

ACCESSIBLE INSTRUCTIONAL MATERIALS AND THE TEACH ACT

Issue 

One of the biggest issue facing students with disabilities and institutions of higher 

education is the lack of accessible instructional material. Although digitized libraries like in the HathiTrust case might improve access to digital books, instructional 

material now includes a broader range of content. In 2011, a congressionally authorized Commission called the Advisory Committee on Accessible Instructional Material by Students with Disabilities in Postsecondary Education (known as the AIM 

Commission) finished its examination of the status of accessible instructional material in postsecondary education and issued a report. The report found that ‘‘in addition to accessibility challenges posed by various types of digital content, students 

with disabilities often encounter barriers when attempting to use course management or courseware delivery systems, online course registration utilities, basic productivity software and library reference databases. While not all of these commonly 

installed software programs are inaccessible, many of them pay only marginal attention to accessibility.’’ 

Data from the AIM Commission report and another study conducted by Association of Research Libraries’ joint task force on services to patrons with print disabilities found that lack of access to instructional material was a persistent problem for 
43 

students with print disabilities, and that the problem went beyond just delayed access to books. One study found that students with disabilities ‘‘have experienced a 

variety of challenges, including blocked access to educational opportunities and matriculation failure resulting from inaccessible learning materials and/or their delivery systems.’’ Blind students should not be allowed to drop out of college because 

they were denied access to critical course material. How could any student succeed 

without access to the materials? What’s worse is the fact that these types of technologies are the very technologies that should have ensured blind students’ full participation. 

It does not have to be this way. Titles II and III of the Americans with Disabilities 

Act (ADA) and Section 504 of the Rehabilitation Act require schools to provide equal 

access for students with disabilities. In 2010, the Departments of Justice and Education issued joint guidance to all institutions of higher education clarifying that the 

mandates applied to the use of technology. Despite explicit warning not to use inaccessible technology, the problem has persisted. In the years since this guidance was 

issued, more than a dozen colleges and universities have faced enforcement action 

or entered into settlement agreements over this matter. 

A recurring theme in the data and settlements agreement is a profound lack of 

knowledge in colleges and universities about what accessibility looks like. Unlike 

physical access for facilities, the aforementioned mandates lack any specifics or technical criteria to facilitate their success. Institutions of higher education have no way 

of knowing whether a learning management system or web content is accessible, 

and have no direct path to compliance with the law. Without technical criteria that 

makes it easier to identify accessibility, schools will never have a streamlined demand to stimulate the market and a viable digital marketplace will never emerge. 

A market that does not include accessible materials will inevitably harm a higher 

education community that is attempting to deploy that technology and will surely 

harm blind students. Schools will continue resorting to the antiquated accommodations model, leaving blind students behind and increasing liability for lawsuits. This 

cycle must be stopped. 

Policy Recommendation 

One goal of copyright law is to make clear when copying is acceptable and when 

it is not, and the scenarios that are acceptable were designed to promote the copying 

of texts in order to make them accessible to people who are blind or have low vision. 

Similar goals need to be incorporated into non-discrimination mandates as they 

apply to institutions of higher education and their use of accessible instructional 

material. The Technology, Education and Accessibility in College and Higher Education Act (H.R. 3505/S. 2060) aims for these goals by authorizing the creation of 

voluntary accessibility guidelines for instructional material used in postsecondary 

education, and then incentivizing their use by offering a safe harbor from litigation 

to any school that only uses technology that conforms to those guidelines. The more 

schools that conform to the guidelines, the more the market will include accessible 

material. 

The TEACH Act has bipartisan support in both chambers, support from the publishing industry, and endorsements from over twenty disability advocacy groups. 

However, revisions to copyright law can complement the TEACH Act and efforts to 

develop clarifying accessibility guidelines. The first recommendation of the AIM 

Commission report was the creation of accessibility guidelines, and the second was 

‘‘Congress should review the scope, effectiveness and function of the Copyright Act 

as amended (Section 121, the Chafee Amendment) to determine whether it or any 

of its key component elements, as well as its implementation through applicable regulations, need to be updated to adequately address the needs of individuals with 

print disabilities, including those enrolled in postsecondary education.’’ 

This recommendation is rooted in the fact that technology is constantly evolving 

with types of material regularly converging into new, hybrid formats. A textbook 

and an assessment were once two different documents, but now digital textbooks 

often include assessments. A website and a group discussion were two different forums, but now learning management software brings web content and group discussions into one digital space. Similarly, the scope of students with print disabilities 

is evolving. The amount of students with learning disabilities is increasing, and inaccessible instructional material might create barriers for students that were once 

considered ‘‘mainstream’’ in the print-world, but now have limitations caused by the 

inaccessibility of the digital world. Copyright law must be updated to reflect the agnostic nature of technology and to compliment the goals of the accessibility guidelines created by the TEACH Act. 
44 

MARRAKESH TREATY

Issue 

In 2013, I was the NFB’s delegate to the Diplomatic Conference of the World Intellectual Property Organization, which took place in Marrakesh, Morocco. The conference concluded successfully with the adoption of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or 

Otherwise Print Disabled. The day the conference concluded, fifty-one countries 

signed the treaty, and the United States joined the rank in October of last year. 

Unlike in the United States, over two-thirds of the world’s countries do not have 

laws that allow copying of copyrighted works into accessible formats. In these countries, national law would consider copying a text into an accessible format (like 

Braille) without authorization of the rights holder a violation of copyright. Not only 

does this discourage digitization of works so that blind and other print disabled people can access the same titles as mainstream readers, this erects barriers to trade 

because the export or import of accessible format copies could trigger infringement 

liability. It is critical that these limitations be removed. Given the high cost of producing accessible format copies, the ability to share accessible format copies across 

borders would be particularly beneficial to the blind in all countries, including the 

United States. The treaty enables countries to import and export accessible copies 

of a given text rather than having to create their own, and enable those in other 

countries to acquire U.S. editions that are not now available in their home countries. This would also have a highly tangible benefit for the blind of the U.S. because we currently do not have access to accessible formats produced in other countries. This is particularly important in attempting to access accessible books in foreign languages. Additionally, access to English language books can be greatly improved because some sixty countries officially speak English and produce accessible 

formats that we cannot currently access. 

The Marrakesh Treaty requires contracting parties to adopt copyright exemptions 

that are modeled after U.S. copyright law, including:1) the making of accessible format copies; 2) the domestic distribution of accessible format copies; 3) the export of 

accessible format copies; and 4) the import of accessible format copies. 

Policy Recommendations 

The State Department is currently developing the ratification package for this 

treaty, and I hope the package will be completed in time for the Senate to consider 

ratification during the next Congress. Because the Marrakesh treaty calls for contracting parties to adopt copyright exemptions that have already been adopted by 

the U.S., ratification should not require any amendments to copyright law. We urge 

our esteemed representatives in the House that are familiar with copyright law and 

invested in equality for students with disabilities to urge your Senate colleagues to 

give this treaty sincere consideration. Because the Obama Administration has not 

finalized its work on the Marrakesh Treaty, it is possible that it could come to this 

House in the form of an executive agreement. I urge the sound minds in this room 

that initiated this important hearing to review the Marrakesh treaty thoughtfully, 

recognize the benign effect it will have on U.S. law, and endorse the overwhelmingly 

positive effect it will have on blind people here and across the globe. 

Thank you for your time and consideration, and I look forward to taking your 

questions. 

Mr. MARINO. Thank you, sir. 

Mr. Kaufman? 

TESTIMONY OF ROY S. KAUFMAN, MANAGING DIRECTOR, 

NEW VENTURES, COPYRIGHT CLEARANCE CENTER 

Mr. KAUFMAN. Mr. Marino and Members of the Subcommittee, 

thank you for the opportunity to appear today before you to discuss 

how voluntary market-based solutions can efficiently meet the 

needs of stakeholders in the educational environment. 

My name is Roy Kaufman, and I am Managing Director of New 

Ventures at Copyright Clearance Center, a not-for-profit licensing 

hub founded by authors, publishers, and content users in response 

to issues that arose in connection with the 1976 Copyright Act. 
45 

CCC has been active since 1978, enabling efficient, lawful reuse 

of copyrighted materials. We represent more than 600 million 

rights primarily for text works under agreements with more than 

12,000 rightsholders. These rightsholders range from individual authors to local and national newspapers, to universities, commercial 

and noncommercial publishers. In many cases, these works are created by academics and for academics. 

Our users and rightsholders include residents of every U.S. 

State. We license more than 1,200 domestic academic institutions 

and more than 35,000 businesses globally. We are a net importer 

into the United States of revenues for reuse of published materials. 

Our mission is to make copyright work for everyone. We develop 

products and services that smooth market friction and are voluntary, opt-in, market-driven, and nonexclusive. 

I offer two examples in which market-based licensing solutions 

have helped bridge the gap between users and creators. 

The first involves interlibrary loan. Interlibrary loan, or ILL in 

this context, means the practice of copying materials in possession 

of one library for delivery to another. It operates at the intersection 

of two limitations on the exclusive right of copyright holders, Sections 107 and 108. 

However, even with these legal accommodations, ILL has proven 

to have serious limitations. Thus, 5 years ago, after completion of 

a pilot with the California State University system, the State University of New York, and Scientific Publishers, we launched a product that speeds delivery of digital articles, operates 24/7, 365 days, 

and is usually less expensive for the library than traditional ILL, 

all while providing compensation to the publishers. 

We now have millions of articles available, and nearly 300 academic libraries have adopted it, with new institutions coming on 

board each week. 

This is just one example of how users and publishers working together have been able to develop a better, faster, more cost-effective solution. 

I now turn to electronic use of text-based works in the classroom. 

It has long been established that when print photocopies of copyrighted works are made for student use, copyright fees must generally be paid. In the late 1990’s, classroom content began to migrate from print into online and digital formats. While this migration changed the manner in which students accessed content, academic institutions are continuing to use content to educate students through verbatim copying. 

Throughout this shift, CCC has worked with academic libraries 

to help make academic digital copyright clearance more efficient. 

First, we offer transactional licenses for electronic works on a perwork basis. Later, we worked with publishers and more than 50 institutions of higher education to create a repertory or blanket-style 

license to cover print and electronic reuse by faculty, staff, students, and, indeed, distance learners, as has come up earlier. 

As of today, 150 academic institutions have purchased this repertory license and more than 1,000 others have continued to clear 

print and digital uses on an as-needed, transactional basis. 

However, one result of the migration to digital copying has been 

that some academic institutions are increasingly using it as an ex-
46 

1See, e.g., S. Rep. No. 94–473, 94th Cong., 1st Sess., at 70–71 (1975). 

cuse to cease paying copyright holders. The GSU case, which was 

mentioned by Chairman Coble before, examines this. 

That case is still pending in the courts. What is most relevant 

to my testimony is that at the time of the lawsuit, when GSU had 

6,700 works in its electronic course system, it could have purchased 

a repertory license from CCC for an annual license fee of $3.75 a 

student. This license would have granted GSU friction-free permission to use millions of works in electronic reserves and in print and 

electronic course packs. 

We know the license is appropriate for academic institutions 

such as GSU. We built it with them for them. 

Fair use line-drawing is inevitably complex and uncertain. Making copyright work is not. Copyright works when creators and 

users, taking reasonable and differing conceptions of fair use 

boundaries into account, get together and build solutions. 

With this in mind, CCC has created multiple, easy-to-use, reasonably priced license mechanisms. 

We urge Congress, as it considers these issues, to recognize the 

potential for voluntary, opt-in, market-based solutions that further 

all constitutional purposes of copyright. 

Thank you again for the opportunity to testify today. CCC looks 

forward to working with the Subcommittee as it continues to explore these important issues. 

[The prepared statement of Mr. Kaufman follows:] 

Prepared Statement of Roy S. Kaufman, Managing Director, 

New Ventures, Copyright Clearance Center, Inc. 

Chairman Coble, Ranking Member Nadler, and Members of the Subcommittee: 

Thank you for the opportunity to appear before you today to discuss copyright 

issues in education, and specifically about how voluntary market-based solutions 

can efficiently meet the needs of users, creators and other copyright holders. My 

name is Roy Kaufman, and I am Managing Director of New Ventures at Copyright 

Clearance Center, Inc. (CCC). CCC is a Massachusetts-based, not-for-profit licensing 

hub and rights aggregator, which was founded by authors, publishers and content 

users in response to issues that arose in the legislative process leading to the Copyright Act of 1976.1

INTRODUCTION

CCC has been a centralized licensing solutions provider since the effective date 

of the current Copyright Act, January 1, 1978, enabling efficient, lawful access to 

copyrighted materials. We represent more than 600,000,000 rights, primarily text 

works, under agreements with more than 12,000 rightsholders. These rightsholders 

range from individual authors and author estates, to literary agents, local newspapers, media companies, blogs, society publishers, universities, and large and small 

publishers of all kinds of text-based materials, many of whom in turn represent the 

interests of an even larger body of creators and employees. Additionally, we broker 

the rights of counterpart collective organizations from more than 30 other countries, 

who also represent millions of creators and publishers. We license reuse (such as 

emailing, online posting and photocopying) of copyrighted works to more than 1,200 

US domestic academic institutions, and to more than 35,000 business organizations 

in the US and 180 other countries, covering millions of students, faculty, researchers and staff, as well as knowledge workers, managers and other employees. 

CCC’s mission is to ‘‘make copyright work for everyone.’’ We accomplish this mission largely by developing products and services that smooth the inevitable market 

friction over the differences between compensable and non-compensable uses of 

copyrighted works, especially written works. All of our solutions are voluntary, optin, market-driven, and non-exclusive. 
47 

2The phrase interlibrary loan technically encompasses two very different types of activities; 

the lending of physical objects such as books for eventual return, and the delivery of copied materials. CCC’s testimony only concerns the latter. 3See Final Report of the National Commission on New Technological Uses of Copyrighted 

Works (‘‘CONTU’’) (1978). At the time of CONTU, unlike now, articles were typically sold in 

bundles known as subscriptions, and were not sold individually online, as there was no online. 

Today, most articles (as well as most journal subscriptions) are purchased in online formats and 

it is increasingly common for librarians to purchase individual articles in lieu of, or in addition 

to, subscribing to journals. This is especially true for corporate libraries, but also occurs with 

academic libraries. 

CCC, directly and through its partners, brings rights to use the copyrighted works 

of US creators to markets around the world, and is a net ‘‘importer’’ of revenues 

into the US for reuse of published materials. Our users and rightsholders include 

residents of every US state, and in the last ten years, we have distributed more 

than $1.4 billion in royalties. For each of the past five years, we have been named 

by eContent Magazine to its list of 100 companies that ‘‘matter most in the digital 

content industry.’’ 

We were formed to enable efficiency in copyright clearance for corporations, government organizations, and academic institutions, so as to avoid the need for those 

users to contact multiple publishers/authors to make payments for photocopies. 

Today, as in 1978, we provide for efficient ‘‘micro-licensing’’ under the supervision 

of a Board of Directors comprised of users, publishers and authors. Last year alone, 

we issued 750,000 individual licenses for the reuse of content, and through repertory 

(or ‘‘blanket’’) licensing, authorized many millions more digital and paper reuses. 

While CCC represents rights of many types of creators into many different markets, CCC has been especially successful in offering products and services on behalf 

of rightsholders who create text-based works for educational, scientific and research 

markets. These works include journals and academic books created by professors, 

scientists, learned societies, commercial publishers, and university presses. In many 

cases, these works are created by academics, for academics. As such, we are uniquely aware from a market perspective of the tensions between the Constitutional purpose of copyright on the one hand (expressed in Article I as ‘‘promot[ion] of 

Science . . . , by securing for limited Times to Authors . . . the exclusive Right to 

their respective Writings. . . .’’), and the language of Sections 107 and 108 of the 

Copyright Act. We are also aware of the power of market-based solutions to further 

all of the purposes of copyright and reconcile these tensions. 

Our experience shows that voluntary market-based licensing solutions can go a 

long way towards solving many of the difficult challenges facing stakeholders with 

respect to copyright and educational reuse. In this regard, we offer two examples 

of ways in which market-based licensing solutions have accommodated the needs of 

users and creators, and bridged the gap between copyright exceptions and appropriate compensation for works of creative expression. 

Example 1: Interlibrary Loan, Fair Use, Sections 107 & 108 and Developing a More 

Efficient Marketplace 

First is an example of how licensing can provide a superior, more efficient and 

more cost-effective service to academic libraries with respect to the sharing of documents. 

Interlibrary loan (‘‘ILL’’) operates at the intersection of two limitations on the exclusive rights of copyright owners: Section 107 (Fair Use) and Section 108 (Reproduction by Libraries and Archives). Interlibrary loan is an old phrase that has been 

repurposed for a new use: in this context, it means not the delivery of physical objects owned by one academic library and shipped to another library, but the practice 

of copying (digitally or on paper) individual articles, chapters and excerpts from textual works in the possession of one library and then delivering the copies for use 

in other, unaffiliated libraries.2 Belying its name, this form of interlibrary ‘‘loan’’ 

does not anticipate that the borrower will return the copy. 

There are two ways in which libraries will typically engage in this form of interlibrary loan without the payment of a copyright fee. First, under Section 108 of the 

1976 Copyright Act, ‘‘lending libraries’’ are allowed to deliver articles at the request 

of ‘‘borrowing libraries’’ without permission of the copyright holder, so long as the 

articles do not substitute for a ‘‘subscription to or purchase of such work.’’ The Congressionally-formed National Commission on New Technological Uses (CONTU) developed guidelines that have come to be known as the ‘‘Rule of 5’’ to establish what 

constitutes a use that falls short of substituting for a ‘‘subscription to or purchase 

of’’ a journal.3

Under the ‘‘Rule of 5,’’ the borrowing library tracks the copies it receives from 

other libraries of a given journal’s articles and pays no copyright fee for borrowing 
48 

4For example, an Association of Research Libraries report concluded in 1992 that ‘‘[m]any patrons, dissatisfied with the limitations of our interlibrary loan services, avoid using them if possible.’’ http://www.arl.org/storage/documents/publications/maximizing-access-dec94.pdf 5 Although copyright fees are not paid for ILL, processing requests can be costly for borrowers 

and lenders. See, e.g., website of the University of California, Santa Cruz (‘‘Though we provide 

ILL services to eligible UCSC patrons at no charge, the cost of an interlibrary loan transaction 

can range from about $20 to $50.’’). http://library.ucsc.edu/services/borrowing/interlibrary-loanfaq (last visited on November 16, 2014) 6See, e.g., Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381 (6th 

Cir. 1996) (en banc); Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (1991); see 

also American Geophysical Union v. Texaco Inc., 60 F.3d 913 (2d Cir. 1994) (photocopying in 

a commercial setting). Obviously this rule has its own exceptions, including but not limited to 

matters such as reuse of public domain works. 

up to five articles from the past five years of a journal. Libraries that determine 

for themselves that they have exceeded this limit typically pay a copyright fee 

through the publisher, through a document delivery provider, or through CCC. Second, some libraries take the position that a number of copies may be borrowed pursuant to fair use, usually for articles published more than five years ago (and therefore beyond the scope of the ‘‘Rule of 5’’). Using these exceptions, virtually all libraries engage robustly in this form of ILL, as borrowers, lenders, or both. However, as 

has been documented by the library community, even with these legal accommodations, ILL has proven to have serious limitations.4

In 2009, representatives from the California State University System approached 

CCC to assist it in relation to its ILL practices. Although Cal State was spending 

in excess of $1 million annually to borrow articles though ILL, typical ILL deliveries 

took 5–10 days. As a result, by the time the materials arrived, the requestor no 

longer needed them in more than 50% of the cases, effectively doubling the costs 

for ‘‘useful’’ ILL.5 Cal State approached CCC to see if we could fix the problem for 

the benefit of the university, its libraries and library patrons. Our response was that 

we thought we could and that, to do so, we needed to create a market-based solution 

with the cooperation of publishers of the materials most in demand at Cal State’s 

ILL desks. 

As a result of this outreach, CCC developed a pilot program with multiple libraries at Cal State, the State University of New York, and scientific publishers. The 

publishers set article prices designed to meet this new market, and CCC developed 

a technology solution that would enable an academic library to get a copy of an article within 5–10 minutes, rather than 5–10 days. The success of this pilot led to a 

service we call ‘‘Get It Now.’’ Get It Now also enables the article to be sent in a 

digital format directly to the requesting student, researcher or faculty member. Get 

It Now does not supplant ILL or limit any user’s rights under Sections 107 or 108, 

but instead complements them. There are times when a library may choose to wait 

the 5–10 days it may take to obtain a journal article via ILL borrowing. But, if the 

patron needs it in 5 or 10 minutes, Get It Now can provide a cost-effective, highquality PDF of the article directly from the publisher, 24 hours a day, 7 days a 

week. And, in many cases, the total all-in cost is lower than that of ILL ‘‘borrowing.’’ 

CCC now has millions of articles available within this service from many of the 

world’s leading commercial and non-commercial publishers, and nearly 300 academic libraries have adopted the Get It Now service, with new institutions coming 

on board each week. This is just one example of how users and publishers, working 

together, have been able to improve educational outcomes, improve use of materials, 

ease administrative burdens on institutions and still reward creators and publishers 

for the reuse of their materials though collaboration. Better, faster, more cost-effective. 

Example 2: Electronic Use in the Classroom, and Easing Compliance in the Digital 

Migration 

As mentioned above, CCC was created at the suggestion of Congress in order to 

help clear photocopy permissions. As the result of several important judicial precedents, it is well established that when print photocopies of copyrighted works are 

made for student use, copyright fees must generally be paid.6 Historically, these 

print copies were bound and sold to students in what are known as ‘‘course packs.’’ 

The courts cited in footnote 5 recognized that depriving copyright owners of revenues for reuse of materials in the markets for which the materials were created 

(academic and classroom use) would have a severe impact upon the ability of such 

publishers to continue to publish new works, to the detriment of the entire academic 

ecosystem. 

In the late 1990s copies of individual items of content as well as course packs 

began to migrate online. Moreover, unlike printed course packs which were gen-
49 

7 Cambridge University Press v. Patton, Nos. 12–14676 and 12–15147 (11th Cir., October 17, 

2014), opinion at http://media.ca11.uscourts.gov/opinions/pub/files/201214676.pdf. CCC and the 

Association of American Publishers, recognizing the long-term negative effects on the market 

for scholarly works of the GSU policy, and after settlement discussions failed, provided financial 

support to the plaintiff publishers. 8 ‘‘[T]his case arises out of a university-wide practice to substitute ‘paper coursepacks’ (the 

functional equivalent of textbooks) that contained licensed copyrighted works with ‘digital 

coursepacks’ that contained unlicensed copyrighted works. This was done for the vast majority 

of courses offered at GSU and, as will be seen, it was done primarily to save money.’’ Id. at 

116 (special concurrence of Judge Vinson) (quotation marks and emphasis in the original). 9 ‘‘[B]ecause Defendants’ unpaid copying was nontransformative and they used Plaintiffs’ 

works for one of the purposes for which they are marketed, the threat of market substitution 

is severe.’’ Id. at 111 (majority opinion); see also id. at 93, n.31 (majority opinion). 

erally prepared by on- and off-campus commercial copying operations, these online 

course packs were increasingly prepared for uploading and then posted by faculty 

or specific library staff. These digital course packs, electronic reserves and other online uses have changed how the students access content, but the content that they 

use (materials published largely for academic use), and the manner in which it is 

used (reading, studying, marking paper copies) have stayed largely the same. In 

short, this new generation of copying is consumed by the same market—academic 

institutions—and serves the same purpose; educating students. 

In the earliest days of this shift, CCC was approached by academic libraries and 

asked to help make digital academic copyright clearance more efficient, as we had 

already done for printed course packs and for print and electronic reuse by businesses. We initially responded to this library demand by offering licenses for electronic reserves on a per-work or ‘‘transactional’’ basis. Then, as a result of more library requests, CCC—working with publishers and representatives from more than 

50 institutions of higher education—created a repertory (‘‘blanket-style’’) license to 

cover print and electronic reuse by students, faculty, staff, distance learners, and 

other affiliates of the institution. As electronic use has become more widespread and 

interchangeable with print, over 150 academic institutions have purchased this repertory license from CCC (and have paid license fees that CCC distributes to the 

rightsholders), and many more have continued to clear print and digital uses on an 

as-needed transactional basis. 

However, one increasingly common and disturbing result of this migration to digital copying has been that some academic institutions, who routinely as a matter 

of business practice and copyright law cleared permission for reuses in print format, 

are no longer doing so for electronic reproductions. An ongoing litigation examines 

this phenomenon, pitting the concerns of academic publishers on the one hand 

against strongly argued positions of fair use. 

In that case, Georgia State University (GSU), with more than 30,000 students, 

100 fields of study, and 250 degree programs offered through eight colleges, abandoned its prior policy of seeking permission for reuse of copyrighted material for 

course packs and stopped paying publishers altogether for academic copying of academic materials in electronic formats, even for multiple chapters used over multiple 

years. The GSU case,7 which was brought by three academic publishers, including 

two university presses, is still pending in the courts. 

The Court of Appeals for the Eleventh Circuit recently unanimously overturned 

in its entirety a decision of the District Court for the Northern District of Georgia 

which was largely in favor of the university, and directed the District Court to reanalyze the facts of the case under a framework for fair use laid out by the Court of 

Appeals. The Court of Appeals decision was accompanied by a concurring opinion 

by one of the judges. As the concurring opinion makes clear, at stake in the GSU 

case is more than where to draw lines in case by case analysis, but rather the disturbing market harm caused by practices such as those at GSU.8 If entire courses 

are offered using materials without compensation to creators, fewer works will be 

created. In this respect, the majority opinion agreed that GSU’s practices risked ‘‘severe market harm’’ to academic publishers. 9

While the final outcome of the case is unknown, what is most relevant to today’s 

discussion is that, at the time of the lawsuit, GSU could have purchased a repertory 

license from CCC for an annual license fee of $3.75 per student. This license would 

have granted GSU friction-free permission to use millions of works in, among other 

things, electronic reserves, print and electronic course packs and other paper and 

digital formats, and would have authorized reuse by all of the university’s administrators, faculty and students. We know the license is appropriate for the academic, 

research and administrative needs of academic institutions; we built it with them 

for them. 
50 

We note this, not to denigrate the role of fair use in the educational setting but, 

rather, to observe that fair use line-drawing is inevitably complex and uncertain. 

At least to the extent that fair use is to be determined on a case by case basis, fair 

use does not lend itself to bright-line rules regarding page and chapter counts. How 

much of the work was used qualitatively as well as quantitatively? What is the intended market for the work? What is the potential market harm? 

Our experience indicates that there are other means of ‘‘making copyright work.’’ 

These involve sitting down with creators and users, determining the rights needed, 

the rights available, and the fair pricing for the rights and uses, taking reasonable 

(and differing) conceptions of fair use boundary lines into account. With this in 

mind, CCC has created multiple, easy to use, reasonably priced license mechanisms 

meeting the needs of academic institutions. In all, more than 1,200 colleges and universities participate in one or more of these license programs. Our newest, aggregated license, which encompasses online uses of the type GSU has been engaging 

in, costs less annually per student than one small pizza, enables faculty to focus on 

the important business of teaching, and spares administrators, faculty, and librarians from needing copyright expertise in order to do their jobs. Market-based solutions require different options for different customers, and we have delivered those 

options in the past and will do so in the future. 

CONCLUSION

Licensing does not supplant fair use and statutory limitations such as Section 

108. Fair use will not and should not disappear merely because a copyright holder 

offers to license a use of its work, or because a user accepts such a license. For licensing to work, rightsholders need to offer value, which means in part providing 

licenses for rights that go beyond a reasonable notion of what is allowed pursuant 

to statutory exception. Increasingly, it also requires providing services that compliment copyright licenses, such as delivering content along with such licenses as 

CCC does with Get It Now. 

We urge Congress, as it considers the consequential issues before it, to take account not only of the ‘‘first principles’’ of copyright law that should guide sound policy-making, but also to recognize the potential for voluntary, opt-in, market-based 

solutions of the type CCC has developed that meet the reasonable needs of users, 

while helping promote the creation of works of authorship that further the Constitutional purposes of copyright—the ‘‘promotion of Science and the useful Arts.’’ 

Thank you again for the opportunity to testify today. CCC looks forward to working with the Subcommittee as it continues to explore these important issues. 

Mr. MARINO. Thank you, Mr. Kaufman. 

As is my tradition, I hold my questioning until last and give my 

colleagues the opportunity to ask questions, since I am going to be 

here. 

So therefore, the Chair recognizes the gentleman from Texas, 

Congressman Farenthold. 

Mr. FARENTHOLD. Thank you very much. 

I would like to start by asking Mr. Adler, it is my understanding 

that after the publishers first sued Georgia State, Georgia State 

adopted a new e-reserve policy that was very similar to the e-reserve policy that your organization had agreed to with Cornell and 

other universities. The publishers nonetheless continued to litigate 

against the new e-reserve policy, and this new policy was subject 

to the decision in the District Court in the 11th Circuit. 

Why did the publishers continue to pursue Georgia State after it 

adopted its new policy? Shouldn’t they have just declared victory 

once Georgia State adopted a policy that they were okay with? 

Mr. ADLER. First of all, Mr. Farenthold, the policy that was 

adopted was not the same as the principles that we had worked out 

with Cornell and Marquette and Hofstra and Syracuse. It was a 

very different kind of policy. 
51 

Secondly, the policy was largely intended to try to moot the litigation based on the arguments made by Georgia State to the court 

that none of the infringing activities that we alleged to have occurred under the prior policy were actionable anymore, because 

they had simply acted to replace the policy. 

As you know, that is not a very suitable way to go about in Federal court seeking redress of grievances. Basically, we felt that 

there had been violations of copyright law committed. They needed 

to be answered to the court, and simply can’t be eliminated by 

changing the policy and saying that whatever happened before no 

longer matters. 

Beyond that, the new policy that they have continues to operate 

in a way that even the majority of the appellate court that reversed 

and remanded the case back to the district court found was largely 

misusing a mathematical formula in a simple arithmetic way of determining whether in a particular instance a use of a publisher’s 

works was fair use. As long as they continue to do that, the same 

types of problems that existed under the previous problem were 

going to continue. 

Mr. FARENTHOLD. Okay, let me go to Mr. LaBarre. I might come 

back to you, Mr. Adler. 

Mr. LaBarre, do you foresee technology solving this problem, as 

more and more books become available in e-book format? You are 

starting to see the e-book manufacturers provide accessibility functions like text to speech. You have the new Amazon tablet that is 

supposed to be pretty good with text to speech. Is a lot of this stuff 

going to eventually take care of itself? 

Mr. LABARRE. Well, we hope so, in one regard. The problem is 

that a lot of the devices that are made, or the software that is used, 

is not compatible with the type of assistive technology that we use. 

I may have a laptop here that has on it something called JAWS 

for Windows. It is a screen-reading program. But if the underlying 

software or item cannot be read by JAWS, then that document is 

as inaccessible to me as it ever was. 

So this is the point: Technology holds out the promise, but we 

need to put in place procedures and guidelines, and make it clear 

that when you build this technology, it can be accessed, because inherently, all digital information is a bunch of zeros and ones. It is 

neither print-friendly, Braille-friendly, audio-friendly. It is digital 

information. 

As long as we construct a way to get at that information in a 

nonvisual manner, then what you are saying is, indeed, true. We 

will have access to many more books. And the potential exists that 

we can have access at the same time. 

However, if we don’t build the appropriate infrastructure and 

have the appropriate guidance from, for example, Congress, then 

we will not reach that day and not realize the promise that technology—— 

Mr. FARENTHOLD. Obviously, a little bit beyond the scope of the 

intellectual property issue, but I do think it is something that Congress could investigate, and it may take care of itself. 

I wanted to get Mr. Adler’s comment on that as well. 
52 

It is clearly in publishers’ and authors’ best interests to move 

away from paper books. It is cheaper to produce. You don’t have 

overprints. You don’t have warehousing. It is easier to update. 

Is there a reluctance within your community to moving to digital? And do you think a move to digital solves this accessibility 

issue? 

Mr. ADLER. No, sir. There is not a reluctance at all on the part 

of publishers to move to digital. I think the explosion of e-book 

trade has indicated that publishers, certainly, are interested in, 

and are engaging in, use of digital formats in order to distribute 

their works. 

But there are two important things, also, that we have to consider. One is the fact that much of the marketplace doesn’t want 

digital works. For that reason, there is still a healthy demand for 

works in printed format. It depends upon the type of work at issue, 

but there are people out there who are not interested in having a 

Kindle or any other device to read books. They just like to read 

books in paper form. 

Mr. FARENTHOLD. The battery does not run out on my hardback 

books, so I understand that. 

But I see my time has expired. 

Mr. ADLER. If I could just finish, the other point is that, according to the U.S. Bureau of Labor Statistics and the Census Bureau, 

about three-quarters of the publishers in the United States are 

small businesses. These are businesses that may have as few as 10 

employees, and they produce as few as two or maybe three works 

a year. 

For many of them, they don’t have the ability to invest in, or the 

sophistication to use, some of the production facilities that are required in order to produce works in the types of digital formats 

that do lend themselves greater to accessibility. 

Mr. FARENTHOLD. I can’t believe it is harder to publish something digitally than it is hardcopy. I am not buying that. 

But I yield back. 

Mr. MARINO. The Chair recognizes the gentleman from New 

York, the Ranking Member of the Subcommittee, Congressman 

Nadler. 

Mr. NADLER. Thank you. I will start with asking Mr. Adler—he 

is missing only an ‘‘N’’ in front of his name to be in better shape. 

[Laughter.] 

Mr. Adler, why do educational publishers consider it so important to improve clarity and predictability in the application of fair 

use to the use of copyright works for education purposes? What is 

the problem there? 

Mr. ADLER. The chief issue with respect to Georgia State University, and this is why, with respect to Mr. Farenthold’s question, 

Georgia’s change of policy was not to adopt the type of policy that 

was adopted by the other schools he mentioned, because the other 

schools accepted the principle that it doesn’t matter what form of 

media a work is formatted in for distribution and use. The issues 

of copyright apply the same way whether you are dealing with a 

work in digital or print format. 

Georgia’s policy continued with a practice that didn’t accept that 

notion and continued to treat the fact that even though it had been 
53 

paying permission fees for paper course packs, it continued to deny 

that it had to pay fees for the same type of course—— 

Mr. NADLER. The required clarity is that the law applies in both 

cases? 

Mr. ADLER. Yes, so the fact of the matter is that now so many 

publishers are producing material specifically for the academic 

market in digital forms using online platforms that have greater 

functionality and are more helpful to instructors in dealing with 

some of the problems of students today and higher education. We 

are concerned about this lack of willingness to accept the media 

neutrality premise. 

Mr. NADLER. And you think the scope and applicability of fair 

use by the courts has strayed from the statutory language and the 

Supreme Court precedent? 

Mr. ADLER. Yes, it has. 

Mr. NADLER. And that should be straightened out by us or the 

Supreme Court? 

Mr. ADLER. Yes, the Supreme Court announced the notion of the 

importance of transformativeness in fair use analysis in a case that 

involved parody, where what was involved was the creation of a 

new work with new original expression in commenting on a pre-existing work. 

Many of the decisions in the area of transformativeness now no 

longer require that there be a new work produced or that even new 

original expression be applied to the pre-existing work. They simply decide that if there is a different purpose to which the work is 

being applied, and that purpose can be viewed as having social 

benefit, that constitutes fair use. That is a distortion of what the 

Supreme Court has said. 

Mr. NADLER. Thank you. 

Mr. Bernard, can you explain why the higher education associations strongly support the continued viability of flexible fair use as 

a bedrock principle? 

Mr. BERNARD. Yes, thank you, Congressman. 

So fair use enables postsecondary institutions to be able to make 

decisions at the time that the problem emerges, rather than waiting for Congress to create another limitation to make particular 

kinds of uses. 

In order to do the kinds of work we do on our campuses, we actually need to be thinking about the students that we see today. 

So, for instance, just to think about the questions that we have 

been asked and are now starting to answer about access for people 

who have print disabilities, were fair use not available to the University of Michigan and other libraries who participate in 

HathiTrust, we would not have taken that 100,000 or so works and 

turned it into 13 million works that scholars and students attending postsecondary institutions will have the opportunity to access, 

so they actually don’t have to wait weeks upon weeks to be able 

to decide whether or not they want to even use the work that has 

been either converted or digitized. Now these works are immediately available. 

It is fair use that enabled that. Our institutions make these 

kinds of judgments—— 

Mr. NADLER. It is flexible fair use that has enabled that. 
54 

Mr. BERNARD. It is. It is the opportunity to weigh those things. 

There is no question that copyright holders have rights. 

I realize that that there is a meme out there that suggests that 

postsecondary institutions think that everything should be free. 

But this is not how we view things. We spend an extraordinary 

amount of money every year buying copyrighted works or licenses 

to those works because we think that is the right thing to do. 

Mr. NADLER. I have one other question before the time runs out, 

because I see that yellow light is on. 

Although Mr. Coble is not in the Chair, he would cut it off quickly, nonetheless. 

Do you think the Section 110(1) classroom exception should be 

modified to include places other than traditional classrooms, for example, in a gym or library on school grounds? 

Mr. BERNARD. I think that is, certainly, plausible, and something 

that we ought to be thinking about. I also think we ought to consider the classroom of today, which is an asynchronous classroom. 

The course management systems that—— 

Mr. NADLER. What do you mean by asynchronous? 

Mr. BERNARD. What I mean is that aspects of the course experience that the student has with the faculty member doesn’t happen 

right in front of the faculty member. The faculty member might 

say, ‘‘What I would like you all do is view this material or interact 

with this material and then come back and talk to me.’’ It might 

even be that students actually leave the classroom or it might be 

that they do it at home. 

We are starting to do these flipped classrooms where faculty 

members are doing their lectures in a digital format, including 

showing images, films, sound—those sorts of things. Students see 

that at home, along with doing their homework and reading, and 

then they come to class and they can actually interact with the faculty member in person. 

Rather than having the faculty member just be the sage on the 

stage, the faculty member is actually able to answer questions, because the lecture has already happened. And this is the modern 

classroom. 

Mr. NADLER. I like that phrase, ‘‘sage on the stage.’’ 

But let me ask just one more question, a general question. Are 

there other updates to Section 110(1) that you think are needed? 

Mr. BERNARD. We use Section 110(1) robustly. We don’t use Section 110(2) all that much. We end up relying on fair use, to your 

earlier question. 

But Section 110(1), we haven’t really had problems with it. We 

show what we need to in the context of the classroom. We, certainly, would like it to apply to asynchronous learning. 

Mr. NADLER. Thank you. 

I yield back. 

Mr. MARINO. Thank you. 

The Chair recognizes the gentleman from Michigan, the Ranking 

Member of the full Committee, Congressman Conyers. 

Mr. CONYERS. Thank you, Chairman Marino. 

I ask unanimous consent to put in my opening statement. 

Mr. MARINO. Without objection. 

[The prepared statement of Mr. Conyers follows:] 
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Mr. CONYERS. Thank you. 

Let me turn to General Counsel Adler to ask this question. How 

has the Chafee amendment helped copyright issues for the blind or 

other individuals with print disabilities? 

Mr. ADLER. The copyright exemption that is known as the Chafee 

amendment was necessary at a time which was largely pre-digital, 

when in order to be able to try to make printed works useful to 

people who have print disabilities, such as blindness or low-vision, 

you needed to convert those works in some manner so that they 

would be usable. 

The Chafee exemption was designed to ensure that there was no 

unnecessary delay in obtaining permission from the copyright 

owner of the particular work in order for certain authorized entities who knew how to do those conversions to be able to go ahead 

and create accessible versions of those works. 

Later on, digital technology has allowed for great strides to be 

made in making works inherently accessible, hopefully in the marketplace, so that you have only one version of a product that can 

be purchased by people with print disabilities, as well as consumers who don’t have those print disabilities. 

But the Chafee amendment has been very useful. It helped establish Bookshare, which is the largest online digital library of accessible works available for people with print disabilities. And AAP 

was very proud to work with Benetech in order to see that the 

launch of Bookshare was successful. 

Mr. CONYERS. Thank you. 

Counsel Jack Bernard, how would you assess how the current 

copyright regime works for educational institutions, such as universities? 

Mr. BERNARD. Thank you, Congressman. The copyright regime is 

working pretty well for us. I mean, we do have the challenges of 

the flexible fair use standard that we like. We appreciate having 

the flexible fair use standard. It means we have to invest in it and 

work hard. 

Copyright is working well for postsecondary institutions, because 

it creates opportunities for us not only to have access to works, but 

to provide access to works. 

Higher education is changing dramatically right now in so many 

ways. The flexibility afforded by the Copyright Act, and specifically 

Section 107, enables us to analyze the kinds of new uses that we 

want to make. 

Because the Copyright Act is structured so that there are Sections 108 through 122, Congress has the opportunity to authorize 

additional uses, so that we wouldn’t have to go through that more 

difficult fair use analysis, as happened in Section 108. We, certainly, welcome those opportunities to expand the limitations on 

copyright holders’ rights for the benefit of the public. 

Mr. CONYERS. Thank you very much. 

Mr. BERNARD. Thank you. 

Mr. CONYERS. Could I ask State President LaBarre and Managing Director Kaufman if they have any additional comments that 

they would like to make in connection with our purposes of this 

hearing this afternoon? 
62 

Mr. LABARRE. Yes, Mr. Congressman, if I may, I want to respond 

a little to what Mr. Adler was saying. 

Now, it is true that technology is changing how we access information, but it is not the cure-all. Consequently, Chafee needs to be 

as strong as ever, and we need to ratify Marrakesh. 

What I mean by that is that this technology that I have in front 

of me that allows me to get access to digital works, if they are inherently accessible, which is still a minority of such works, is expensive. It costs thousands of dollars. 

Consequently, there are blind and low-vision people who cannot 

use the technology and still need the hardcopy Braille, the 

audiobooks, and large print. 

So regardless, if every book were somehow inherently digitally 

accessible today, there would still be a significant number of people 

who are blind and visually impaired who still would not have access. 

And I wish we were at a time when even those digital works 

were largely, if not totally, accessible. But they are not, so we still 

have a long way to go. 

Mr. CONYERS. Do you have anything you would like to add? 

Mr. KAUFMAN. Yes, I will make it brief, given the time. 

I would just like to say that within the educational environment, 

we have great opportunities and new ways to use digital content, 

especially for distance-learning, massive online open courses, and 

things like that, and that voluntary opt-in licensing is a really good 

way to match up the needs of the users, be they educational institutions or students, and rightsholders on the other side. 

Thank you. 

Mr. CONYERS. Thank you very much. 

I thank all the witnesses. 

I yield back my time. 

Mr. MARINO. Thank you, sir. 

The Chair recognizes the gentleman from New York, Congressman Jeffries. 

Mr. JEFFRIES. I thank the Chair, and I thank the distinguished 

members of the panel for your presence here today, as well as for 

your presentations. 

I think, as every Member of this Committee, I take seriously our 

responsibility to protect the intellectual property rights of the creative community of innovators, certainly a charge that finds its 

roots in the Constitution, Article 1, as we know it, authors and inventors. 

But as we move forward with the 21st century innovation economy, and in the context of that innovation economy and its 

connectivity to the educational arena, I would be interested, perhaps beginning with Mr. Adler, how do we balance the changing 

classroom environment and the different ways in which learning 

may take place as a result of the digital revolution with that sacred 

constitutional charge that we have to make sure we are protecting 

intellectual property of authors, in this case? 

Mr. ADLER. Thank you, Mr. Jeffries, for the question. 

As I said, we are in the midst of a revolution in which educational publishers are basically now providing online learning solutions as well as customizable content that can be used online or 
63 

with a variety of different kinds of digital devices. Those materials, 

as I say, can be personalized for the needs of individual students 

and help them be able to better engage in their learning process 

and stay in school to achieve better outcomes. 

During that process, I think it shouldn’t be a problem for people 

to understand that, as in most aspects of use of copyrighted works 

in digital formats, licensing is going to be involved. The fact that 

licensing is now convenient, is affordable, as we argued in and 

demonstrated in the Georgia State litigation, it should be become 

part and parcel of the educational environment, which doesn’t 

mean that there is an end to fair use in that environment. It simply means that as greater functionality is desired and the ability 

of these materials in digital formats to be used in more creative 

ways and available to more people through different channels, that 

licensing becomes a more important aspect of being sure that copyright is respected while these materials are being widely distributed and used in the higher education sector. 

Mr. JEFFRIES. Now, I know the Georgia State case is still working its way through the court system, and I gather an application 

for the entire circuit to hear the case is currently pending. But 

what, if any, lessons can or should Congress or this panel draw 

from the issues litigated in that Georgia State case? 

Mr. ADLER. Well, among other things, again, the importance of 

the copyright principle of media neutrality. 

Congress has made it clear, the Supreme Court has made it 

clear, and I guess it has to be reaffirmed again, that the rights of 

copyright owners and the way in which those rights apply to uses 

of their works, doesn’t change from one medium to another. So that 

in the digital environment, the same type of respect for copyright 

that was accorded to works in analogue formats must also be accorded in digital formats as well. 

Besides that, the notion that on campuses all across the country 

people get to choose among diverse choices for the types of material 

they use, the medium in which they use them, how they access 

them, how they are delivered to them, gives them a great deal of 

freedom in order to shape their own agenda. 

The publishers are not trying to tell teachers how to teach. They 

are simply trying to provide them options in terms of the tools that 

are available for them to decide what is the best way to get the 

best results with their students. 

Mr. JEFFRIES. Mr. Bernard, could you weigh in? 

Mr. BERNARD. Thank you, Congressman. I think there is an opportunity here for a note of caution along a couple lines that I want 

to think about with you. 

That idea of a world in which everything is digital gives us wonderful opportunities, as Mr. Adler has described, tremendous opportunities that education avails itself of. But there is also the concern 

that we might actually start transgressing on what would be a fair 

use. 

That is, in a world where everything is digital, it is possible to 

license a page, a paragraph, a sentence. And I think we would 

want to be very clear that we don’t want to end up in a world 

where just because there is an extant license means that the public 

will not be able to make some uses to which it is entitled. 
64 

Fair use is there, in part, in order to protect our ability to make 

our First Amendment rights available. So it is critical that we 

think about that relationship. 

In addition, another thing to be concerned about is, in the realm 

of a license regime, we start losing our ability to make first-sale 

uses. That is, the digital book you buy may not necessarily be 

something you can pass on. 

Now, there have been efforts to move along these lines. But I 

think the digital collections people have, they may not be able to 

share. So the value of the work itself, the ability to promote the 

kind of colloquy and interaction that we have when we share works 

with other people, may disappear in a regime that is governed by 

licenses. 

Mr. JEFFRIES. Thank you. 

I yield back. 

Mr. MARINO. Thank you. My Democratic colleague Dr. Chu was 

unable to attend today, but she asked if I would present a question 

to each of you actually, so we will start with Mr. Bernard and then 

we can go right down the line, should you choose to answer these 

questions. 

Dr. Chu asked Mr. Kaufman, Mr. Bernard, Mr. Adler, and Mr. 

LaBarre, if you would like to address this also, you all address the 

GSU litigation in your testimony. Mr. Bernard noted that the 11th 

Circuit recognized that, ‘‘Congress devoted extensive effort to ensure the fair use would allow for educational copying under the 

proper circumstances.’’ The publisher’s lawsuit against GSU indicates that there is disagreement over what those proper circumstances are. 

What do each of you think the value would be for the day-to-day 

educational needs of faculty and students if stakeholders could 

work with the Copyright Office to come up with safe harbors or 

some other mutually agreed guidance? 

If you need me to repeat any of that, just let me know. 

Mr. BERNARD. Okay, so thank you, Congressman. I think postsecondary institutions, higher education, is always looking for the opportunity to talk about how we might make things work well. I 

think the Georgia State case, in my view, is an unnecessary case. 

It is a case that could have been resolved through diplomacy. 

I think it is that kind of diplomacy that is of critical importance. 

Yes, we are not always going to agree, but, overwhelmingly, we 

find a way to come to common ground, because it is not a good use 

of anyone’s time to have these kinds of disputes that are very, very 

expensive. 

I think the Copyright Office, certainly, can be helpful. I know 

that my university and others have partnered with the Copyright 

Office to talk about things like making works accessible to people 

who have print disabilities, orphaned works, so I think there is 

value in having an open discussion. 

Mr. MARINO. Mr. Adler? 

Mr. ADLER. Yes, Mr. Marino. As I said in our oral statement, we 

urge the Congress to direct the Copyright Office to engage in a 

study that would involve soliciting public comment, holding 

roundtables for public discussions, to help clarify how fair use operates in the educational setting as well as in other contexts. We 
65 

think that the Copyright Office, as the Government’s expert on 

copyright, has repeatedly been tasked over the years by Congress 

to look into a number of different issues, to report to Congress with 

recommendations about how to address particular situations and 

problems. 

There is no reason why the Copyright Office shouldn’t be tasked 

to employ its expertise in the area of fair use. So we would strongly 

support a recommendation of that nature. 

Mr. MARINO. Thank you. 

Mr. LaBarre, please? 

Mr. LABARRE. Yes. Certainly, in one context, fair use has been 

of great benefit to the blind and low-vision. The Supreme Court, in 

fact, has recognized that transforming materials into accessible formats is almost impliedly a fair use. So we, certainly, believe that 

Congress needs to reaffirm those principles, as it did in 1976 when 

adopting the current version of the copyright regime. 

With respect to these other more global issues that are going on 

in terms of mainstream education, the comments I made earlier 

about getting access to that stream are relevant here. We would 

like to be on the same footing to debate some of these issues, but 

we are not even inside that room yet because we don’t have access 

to materials on a broad basis. 

Finally, with respect to the issue of safe harbors, I referenced in 

my testimony the TEACH Act, our new TEACH Act that is before 

this Congress. It would offer to educational institutions a safe harbor from litigation, if those institutions follow the guidelines that 

would be developed with respect to making material and published 

works accessible in the educational space. 

The reason this is necessary is, although we have broad mandates from this Congress that the educational experience must be 

accessible to an individual with a disability and you must be able 

to participate on terms of equality, no one really knows how to do 

that. That is why it is critical that we develop these guidelines. 

And as part of that, in doing so, and if institutions comply with 

those guidelines, they would, in fact, have a safe harbor from litigation. 

Mr. MARINO. Thank you, sir. 

Mr. Kaufman? 

Mr. KAUFMAN. Yes, the short answer to your question is yes. The 

longer answer is we would be very happy to work with the Copyright Office in looking into these issues. That is, in fact, how we 

fulfill our mission of making copyright work. We do this through 

working with stakeholders, users, creators, everyone who we can 

get into a room and try to work out these things to function and 

smooth out any ruffles. 

So, yes. Thank you. 

Mr. MARINO. Thank you. I am a big proponent of anyone having 

a dog in the fight be sitting at the table and taking part in the procedures like this. 

I am going to convert now over to my questioning. The question 

you responded to was for Dr. Chu, and now I am going to take a 

couple moments and ask some of my questions. 

I want to start with Mr. Bernard. I come from a prosecution 

background, so everything is very narrowly defined. We constantly 
66 

refer to the fair use, but some of us refer to flexibility or the flexible fair use. 

Where do you draw that line? What is not flexible? What is flexible? Who is to make that determination without litigating? 

Mr. BERNARD. It is important that we are able, as higher education, to engage in communication and speech. And every time a 

person is prevented from using an expressive work, this is an incursion into speech. 

Now, it is an incursion into speech that has another constitutional benefit; that is, incentivizing people to promote progress. But 

the line there is a delicate line. It is a line that we work out a great 

deal with content holders and as content holders ourselves. 

So I understand the Copyright Act is designed to have that pressure valve in it, so that courts and people sitting around the table 

can talk about how they might smooth over disagreements. 

So the rigidity there is a challenge because we are at the confluence of the First Amendment and the progress clause. We want 

to be able to do both. It is a very delicate thing. 

So I understand the attraction. I assure you that many people on 

our campuses would love bright lines for everything. But there are 

risks with bright lines, in this context. 

And I would say, too, when we talk with the Copyright Office 

about these issues, it is important not to diminish that flexibility, 

because it is useful in the kinds of engagements we have. 

And as I said before, we spend an extraordinary amount of 

money and energy as customers. My library is a customer of the 

Copyright Clearance Center. These relationships are important relationships, and just because there is a flexible fair use doesn’t 

mean they won’t happen. 

Mr. MARINO. Thank you. 

Mr. Adler, would you like to respond to that? 

Mr. ADLER. Yes, we know that it has been very difficult for any 

agreement to be reached on any kind of quantitative standards for 

fair use. No one wants to have page counts or questions of whether 

chapters or other units of works constitute a fair use unit as such. 

That has been a real difficulty ever since the codification of fair 

use, wherein Congress, actually, in its legislative history endorsed 

a compromise for classroom guidelines that attempted to go in that 

direction. 

We understand that in the digital environment, the classroom 

guidelines clearly don’t work well or satisfy the needs of education 

at any level. 

But there are important principles that still remain to be applied. The Supreme Court has made it clear, for example, that in 

order to negate fair use, one need only show that if the challenged 

use should become widespread, it would adversely affect the potential market for the copyrighted work. 

There are 4,000 institutions of higher education in this country, 

and if they were all doing exactly what Georgia State has been 

doing, that would meet the definition of the Supreme Court’s concern about alleged fair use becoming so widespread that it adversely impacts the incentives of rightsholders to continue creating 

works for that market. 

Mr. MARINO. Thank you. 
67 

Mr. LaBarre? 

Mr. LABARRE. Well, with respect to fair use, I want to reference 

the Second Circuit Court of Appeals’ opinion in the Authors Guild 

v. HathiTrust case. This is a perfect demonstration of how fair use 

can open up doors to communities who haven’t otherwise had an 

opportunity to access information. In that case, of course, the court 

deemed the University of Michigan’s and other universities’ development of the HathiTrust and making that available to persons 

who are blind and otherwise print-disabled, and deemed that that 

was indeed perfectly in keeping with Congress’ intent in developing 

the fair use clause. 

We need to reaffirm that and make sure that we find other similar uses, because in this case, as it is now applied, if you register 

with the University of Michigan, you can get access to millions of 

works in an accessible format that you did not have the ability to 

do previously. 

Mr. MARINO. Thank you. 

Mr. Kaufman, would you care to respond? 

Mr. KAUFMAN. Yes, sure. What I like about your question is it 

is why I kind of like licensing. 

So there are things everyone is going to look at and say that is 

fair use. And there are things that most people rationally look at 

and say that needs permission. And then there are some grounds 

in the middle where there is room for honest debate. 

With a license, you can take away their need for honest debate, 

because you develop within the license flexibility, so that you are 

granting permission, particularly when you do a repertory license 

to cover all of these uses where you don’t need to decide in each 

and every case is this fair use, is this on the line, does this require 

permission? You cover it all, and do it in expensively, and build the 

ambiguity, frankly, into the price. 

Mr. MARINO. Bear in mind that space between the lines of fair 

use, every time it gets litigated, could become narrower and narrower. 

Thank you. 

Now it is my pleasure to have Congresswoman Jackson Lee from 

Texas ask questions. 

Ms. JACKSON LEE. Thank you, Mr. Chairman. 

Although we are in the waning hours of this Congress, I think 

this is a very important hearing and probably one that maybe requires some further study as to how we can respond. 

As I look at the Georgia State case, I am wondering and reflecting upon what we did in yesteryear of copying and Xeroxing, and 

professors or people Xeroxing notes. 

So I guess I would like to ask, on the Georgia State case, any 

thoughts, Mr. Kaufman, about a legislative response to that, based 

upon what the 11th Circuit did? 

Mr. KAUFMAN. I think we need to see where the case ends up in 

the 11th Circuit. We, as an organization, were formed because of 

the Xerox machine, in large measure, and because of deliberations 

before the 1976 act. So we exist to license photocopies, in the earliest instance, and we have migrated online as an organization. 

Whether legislative action is needed to get people to recognize 

the media neutrality concept and to continue to clear permissions 
68 

for digital uses to things that were clearly required in print, I am 

not sure yet. 

Ms. JACKSON LEE. Do you think that there is a calling or higher 

need to balance the arguments you are making with the arguments 

of learning and teaching? 

Mr. KAUFMAN. I think the arguments that I am making incorporate learning and teaching. In the Georgia State case, it would 

have cost $3.75 per student for a year to be able to copy millions 

and millions of works in print and digital format. As one of our customers once said, this actually enables us to make greater lawful 

use of the things that we are already buying. 

So I think our license solution actually really was created for 

academic use and for institutional use within the academy. I think 

it works very well to do so, as long as people respect the law and 

avail themselves of the license. 

Ms. JACKSON LEE. Let me go to Dr. Bernard and mention the importance of the flexibility of fair use. 

Would educational institutions also benefit from specific guidance 

or more official best practices? And in your view, are professors and 

other instructors able to easily determine what educational uses 

are, in fact, fair on a practical and day-to-day basis? 

Mr. BERNARD. So I would see higher education saying that it 

would be wonderful if Congress said in Section 123 of the Copyright Act, as yet to be enacted, that it would, certainly, be an acceptable use to make some percentage use for the purposes of 

teaching and learning. I think you could take an approach like that 

and say at the same time that this would in no way limit fair use 

in terms of going beyond that, like we do in other sections. 

I should also add that there is no barrier. I know that there has 

been this idea of a barrier for postsecondary institutions to seek licenses. My institution secures almost $10 million in licenses for the 

kinds of works that the Copyright Clearance Center makes available. So this licensing model, the idea that there is this barrier 

over media, it doesn’t graft onto my experience with what postsecondary institutions do. And that $10 million number is an annual 

number to gain access to these works for our students. 

So this is something that is already working and doesn’t require 

legislation. But if you wanted to create some kind of safe harbor, 

a reasonable safe harbor that didn’t include fair use, I think higher 

education would welcome that opportunity. 

Ms. JACKSON LEE. What you are telling us is that you already 

have a global access that you utilize, that your professors can draw 

down on, based upon the responsibility of the university, period, 

and then your professors are covered as they draw down on those 

materials to give access to the students. 

Mr. BERNARD. Sure. Most institutions purchase licenses, and 

they don’t necessarily all purchase the same licenses, and the licenses have gaps. They don’t cover every work. So there is no question that there is need for organizations and ways to get access. 

But abundantly, abundantly, we use licenses to get access to 

many, many millions of works each year, because our students 

need that access in order to promote progress, to be the next generation. 
69 

Ms. JACKSON LEE. And your professors adhere to—they understand and you educated them about it, and they understand how 

to access and use it in their teaching? 

Mr. BERNARD. There is no question that we educate our faculty 

about it. But you know it is like herding cats at times. The faculty 

can be confused, make mistakes. But we work with those who do. 

All institutions run into circumstances where somebody has transgressed some line, and we work with them pretty assiduously. 

Ms. JACKSON LEE. I would ask the gentleman for an additional 

minute. 

Mr. MARINO. Without objection. 

Ms. JACKSON LEE. Thank you very much. 

I want to hear from—I will say a free-for-all from both Mr. 

LaBarre and Mr. Adler, please. I heard from Mr. Bernard and have 

not heard from Mr. LaBarre. 

I want to specifically speak about the visually impaired and just 

give me, in this moment that I have, what can be the most important message that we get out of this hearing today as it relates to 

the visually impaired. 

Mr. LaBarre, do you want to start? 

Mr. LABARRE. Sure. Thank you very much. 

I think the most important message is there isn’t one solution. 

It isn’t just Chafee. It isn’t just Marrakesh. It isn’t just the TEACH 

Act that we have before this Congress. And by the way, it isn’t just 

licensing. 

Our community has used licensing, for example, Bookshare uses 

some licenses with publishers to get material into accessible formats. None of these is the solution alone. 

What I think this Congress needs to know and needs to endorse 

is we need all of these tools at our disposal to get rid of the great 

information gap that people who are blind or low-vision still face, 

despite the advances in technology, despite Chafee. 

We in this country have access to something less than 5 percent 

of published works in accessible formats. So we need to use all the 

tools, and we need to make it clear that it is a high priority of this 

Nation to use these tools, so that someday, hopefully, we will, indeed, catch up. 

Ms. JACKSON LEE. Yes? 

Mr. ADLER. Ms. Jackson Lee, if I may respond to that, I am not 

sure why my friend Mr. LaBarre failed to mention this, but the 

TEACH Act that he so strongly advocates, is intended to have the 

access board, the Government’s expert body on disabilities, basically provide guidelines to inform publishers and manufacturers of 

educational delivery systems for content, what constitutes accessible materials for those purposes. 

That legislation was drafted jointly by the Association of American Publishers and the National Federation for the Blind. We have 

been working the Hill with the National Federation for the Blind, 

obtaining bipartisan support in both the House and Senate for that 

legislation. 

One of the things that people need to understand is that for 

many publishers, and particularly those that I mentioned earlier, 

the small publishers, the ones who are really small businesses, 
70 

they don’t necessarily know what is required to make a work accessible. 

That is why this legislation is extremely important. If experts 

can produce guidelines that will give them a good idea of what 

qualities are involved to make a work in digital format accessible, 

that will greatly improve the availability of accessible works, as 

Mr. LaBarre says is very much needed. 

Ms. JACKSON LEE. So in concluding, you are sensitive to Mr. 

LaBarre’s point about accessibility and publishers through the 

TEACH Act. 

Mr. ADLER. Absolutely. We are jointly working with them on 

that. We are also working with our publishers on adapting their 

production of their publications to an EPUB 3.0 type of format that 

lends itself to greater and more easily casting works in accessible 

formats. 

We and other publishers are continuing along with those initiatives, so that the production of these works continues to have a better opportunity to add accessibility as one of the features of these 

works when they are brought to market. 

Ms. JACKSON LEE. Mr. Chairman, thank you very much. 

Mr. MARINO. You are welcome. 

Ms. JACKSON LEE. I want to just thank you very much. I think 

this issue with the visually impaired is very important. I think this 

was a good discussion between, in particular, Mr. Adler and Mr. 

LaBarre. 

Mr. MARINO. Agreed. 

Ms. JACKSON LEE. Thank you. 

Mr. MARINO. You are welcome. 

Ms. JACKSON LEE. I yield back. 

Mr. MARINO. This concludes today’s hearing. I want to thank all 

the witnesses for attending. I also want to thank all the individuals 

who came to sit and listen to this testimony. 

Without objection, all Members will have 5 legislative days to 

submit additional written questions for the witnesses or additional 

materials for the record. 

This hearing is adjourned. 

[Whereupon, at 4:54 p.m., the Subcommittee was adjourned.] 
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